Lukitsch v. St. Louis Public Service Co.

• Decision Date: 10 March 1952
• Docket Number: No. 42095,42095
• Citation: 362 Mo. 1071,246 S.W.2d 749
• Parties: LUKITSCH v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Supreme Court

Page 749

246 S.W.2d 749

362 Mo. 1071

LUKITSCH v. ST. LOUIS PUBLIC SERVICE CO.

No. 42095.

Supreme Court of Missouri, en Banc.

March 10, 1952.

Salkey & Jones and Carroll J. Donohue, all of St. Louis, for appellant, St. Louis Public Service Co.

Edwin A. Smith, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

This case was transferred from Division One, neither of two opinions submitted therein receiving a majority vote. Portions of those opinions are used herein.

The action is for $15,000 damages for personal injuries sustained by plaintiff when she fell to the floor of defendant's eastbound bus at a point on Hebert Street, an east-west street, and east of the intersection of that street with Blair Street in St. Louis. Plaintiff's case was submitted to a jury under the res ipsa loquitur doctrine, plaintiff having alleged defendant's bus was 'operated by one of its agents, servants and employees in a negligent manner'. Her petition stated the circumstances of an unusual occurrence, in that 'said bus suddenly jolted and jerked in a violent and unusual manner', thereby causing plaintiff to lose her balance and to be violently thrown to the bus floor and injured. The jury returned a verdict for defendant. The trial court sustained plaintiff's motion for a new trial on the specified grounds that Instructions 3, 4, 5 and 6, given by the trial court at defendant's instance, were 'erroneous, misleading, improper and incorrect instructions of law'. Defendant has appealed from the order granting the new trial.

Defendant-appellant here contends that Instructions 3, 4, 5 and 6 are not erroneous but are correct applications of the law to the facts; and that the trial court's order granting a new trial was an erroneous ruling upon matters of law and should be reversed. While trial courts have wide discretion in passing on motions for a new trial where there is error in the record, and may even grant a new trial irrespective of the grounds assigned in a motion for a new trial, yet the power of the trial court to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of issues of fact. There is no discretion in the law of a case, nor can there be an exercise of sound discretion as to the law of a case. Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383; Schipper v. Brashear Truck Co., Mo.Sup., 132 S.W.2d 993, 125 A.L.R. 674; Loftus v. Metropolitan St. R. Co., 220 Mo. 470, 119 S.W. 942.

Plaintiff introduced evidence tending to show that, at about seven o'clock on the evening of July 12, 1948, she boarded defendant's eastbound Walnut Park bus on Hebert Street at the southeast corner of the intersection of Hebert and Blair Streets. She was intending to go downtown shopping. She showed her pass to the operator of the bus, and, as the bus moved on, plaintiff 'walked middleways of the bus--back to the second post--to get a seat', when she heard 'a most violent jerk and jar--a terrible squeaking'. She was thrown 'to the floor all the way up to the front by the driver's seat' and injured. Plaintiff further testified:

'Q. Do you know where that squeaking noise came from? A. Probably the brake.

'Q. Of the bus? A. Yes.

'Q. Did the bus stop suddenly? A. Yes, sit.'

And on cross-examination:

'Q. That is when the stop was made? A. Yes. I heard the most violent squeaking; I don't remember what happened.

'Q. You could tell the brakes of the bus were applied? A. Yes, sir. * * *

'Q. What I am trying to get at: Did that throw you off balance? A. The squeak jarred me off balance * * *.'

Without objection, plaintiff also proved by her witness, Graves, a policeman who was called to the scene of the accident, that he saw plaintiff lying on the floor of the bus, and that:

'Q. Did you talk to Mrs. Lukitsch as to how she happened to get on the floor of that bus? A. Yes, sir. She stated she had just boarded the bus at Blair and Hebert Street and was walking back in the aisle to get a seat when the bus made a sudden stop', etc.

'Q. Did you talk to the bus driver? A. Yes, sir.

'Q. What did he tell you? A. He stated that a car had cut in front of him and he had made a sudden stop to avoid striking this other automobile.'

Also, without objection, plaintiff proved by her son, who had heard of his mother's injury and had gone to the scene, that he there talked to the bus driver: 'What did he tell you? A. He told me that a car pulled in front of him and he had to stop suddenly.'

Defendant introduced evidence tending to show that as the bus moved away from the intersection of Hebert and Blair and had 'straightened out', it was proceeding along Hebert Street at a rate of speed of not more than fifteen miles an hour. There were cars parked on both sides of the street. The bus was moving east two or three feet from the cars parked on the south side of the street. Hebert Street is of 'regular' width, and there was room for two vehicles to pass between the parked cars. An eastbound automobile 'going pretty fast' passed along the left side of the bus. There was no traffic coming from the west. 'He (the driver of the automobile) cut to the right and made a full stop (in front of the bus). * * * When he pulled out in front of me I (the bus operator) quick pulled on the emergency brake and that is when this lady fell * * *.' The bus operator further testified that he 'didn't hear any horn either'. He also testified: 'O. And you say you saw that automobile just to the left of you? A. Yes, sir.

'Q. It then cut in front of you suddenly? A. Cut to the right suddenly and stopped.'

The bus was brought to a stop when its front end was about two feet from the other vehicle.

Mrs. George Leis, a pedestrian walking eastward on the south side of Hebert Street in the same block in which the bus came to a sudden stop, testified in behalf of defendant: '* * * what attracted my attention to it was a machine coming down Hebert Street from the west, making such a noise; just honk, honk, honk, just like he wanted the bus--I said to my husband, 'I guess he wants the bus driver to get off the street', just in conversation.' (What she said to her husband was stricken from the evidence, but it indicates that she did not mean to imply by her testimony that the bus was depriving the automobile of room for passing.) She further testified: 'Well, the car was coming quite fast, * * *. I saw the machine swerve in front of him, * * *. Then the bus driver stopped immediately.' And on cross-examination: 'Q. Was the bus crowding him over? A. No, sir.'

George Smith, a passenger on the bus, testified in behalf of defendant: 'The first thing that attracted my attention was a man coming down the street blowing his horn and trying to pass the bus. When the bus had just got going a ways, all of a sudden, without a moment's hesitation, he crashes right around in front of the bus and the bus driver has to slam on the brakes * * *.'

Instruction 3, hereinafter set out, authorized a verdict for defendant upon hypothesized facts purportedly supporting the theory that the automobile moving eastwardly had passed the bus and then turned into the pathway of the bus so suddenly as to bring about an emergency obliging the bus operator to stop at once in order to avoid a collision. That instruction was as follows:

'The Court instructs the jury that it is the duty of the operator of the motorbus to exercise the highest degree of care for the safety of the passengers thereon and likewise to exercise the highest degree of care for the safety of automobiles and the occupants thereof, that is such care as a very careful and prudent person would exercise under the same or similar circumstances.

'In this connection you are further instructed that if you find and believe from the evidence that at the time and place mentioned in the evidence an automobile suddenly swerved in front of defendant's motorbus and that the operator of said motorbus was confronted with an emergency as a result thereof, if you so find, and that the operator of the motorbus attempted to avoid a collision with said automobile by bringing the motorbus to a stop, and if you find and believe from the evidence that the operator of said motorbus could not anticipate that plaintiff might have been injured by the stopping of said motorbus and if you further find and believe that under the circumstances the operator of said motorbus was exercising the highest degree of care in the operation thereof, then, in such event, plaintiff is not entitled to recover and your verdict must be in favor of defendant.'

Plaintiff contends this is a res ipsa loquitur case; that the sudden jolting and jerking of the bus, in and of itself, warranted inferences of negligence which by Instruction 3 were excluded from consideration by the jury. In her original brief she says: 'There are many things other than negligence of the operator of defendant's bus which may have caused the bus in the instant case to have suddenly checked its speed. We suggest the following: that the braking mechanism of the bus was defective, and the defendant by and through its servants and agents other than its operator, negligently maintained such braking system; negligence of defendant, by and through servants and agents other than its operator, in maintenance of the bus in respects other than its braking mechanism, such as a defective wheel, tire, bearing, or axle.' In her supplemental brief, she adds these suggestions: 'The bus driver may have been driving too far on the north or wrong side of the street. * * * He may not have timely or properly applied the brakes of the bus. He may not have timely swerved his bus to the right after the driver of the oncoming automobile first sounded the horn of his automobile. Certainly, he was not following the law which required him to drive as close to the right-hand side of Hebert Street as practicable.' In support of these suggestions, plaintiff cites La Vigne v. St....