McCaffery v. St. Louis Public Service Co.

• Decision Date: 13 October 1952
• Docket Number: No. 42737,42737
• Citation: 363 Mo. 545,252 S.W.2d 361
• Parties: McCAFFERY v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Supreme Court

Page 361

252 S.W.2d 361

363 Mo. 545

McCAFFERY v. ST. LOUIS PUBLIC SERVICE CO.

No. 42737.

Supreme Court of Missouri, en Banc.

Oct. 13, 1952.

Rehearing Denied Nov. 10, 1952.

Keegan & Rickhoff and Gregg W. Keegan, St. Louis, for respondent.

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

COIL, Commissioner.

This is an appeal by defendant-appellant from a judgment for $20,000 entered on plaintiff-respondent's verdict in her suit for personal injuries allegedly sustained when she was a passenger on defendant's streetcar.

Instruction 1, given at the instance of plaintiff, was a res ipsa loquitur submission. Defendant contends that plaintiff's evidence proved specific negligence and that the trial court therefore erred in giving the instruction. Plaintiff does not here contend that defendant joined in a submission under the rule of res ipsa loquitur and has thereby waived its right to complain of the instruction, but contends that her evidence did not prove specific negligence. We shall, therefore, rule the case on the issue joined.

Plaintiff testified that she boarded defendant's northbound Park line car at 18th and Market Streets. With her was Mr. McKeever, a friend of long standing. They sat in the third seat to the rear of the center door on the right, Mr. McKeever on the outside. They intended to ride three blocks to Olive Street and transfer to a westbound streetcar. At some point south of Olive, Mr. McKeever signaled the operator, arose, and went to the center door. Plaintiff rose to a standing position, grasping the bar on the back of the seat in front of her, when there was a 'horrible noise', a 'sharp banging', a jolt which tore loose her grip and threw her across the aisle against a seat and when into the aisle where she landed on her back with her head to the rear and feet to the front. The car came to a stop or the jolt occurred some distance south of Olive, probably when it was two thirds of the distance between Pine Street (the first street south of Olive) and Olive.

Defendant concedes that the testimony of plaintiff alone did not prove specific negligence, but contends that the testimony of Mr. McKeever, a witness for plaintiff, constituted substantial proof of specific negligence. We shall therefore state in some detail the testimony of this witness.

He said that he left the seat which he and plaintiff were occupying when the streetcar was between Pine and Olive Streets, the car having stopped at Pine. When he reached the center door, he looked around and plaintiff was standing at the seat in which they had been sitting. He then looked again toward the center door and then the car gave an 'extra ordinary terrific and violent jolt'. He looked back where plaintiff had been standing and saw her going to the left side and then hit the floor. This occurred when the streetcar had moved a little more than half the distance between Pine and Olive. The occurrence took place about 11:05 or 11:10 p. m., the night was clear and the weather dry, and it was slightly upgrade from Market to Olive. He could not accurately estimate the speed of the steetcar immediately before the occurrence, but judged it to be between 15 and 25 m. p. h.

The following questions and answers were asked of and made by the witness:

'Q. After this sudden jolt occurred there and Mrs. McCaffery went to the floor can you tell us whether or not the street car travelled any distance? A. Well of course the brakes were shattering and it proceeded a short distance until he was able to release them and then he moved a little further forward.

'Q. He moved a little further forward then? A. Yes and stopped.

'Q. And he came to a stop? A. Yes after the jolt after the release of whatever was the trouble there he proceeded a short distance and then he stopped like and proceeded again toward Olive Street and when he made the final stop he was about approximately fifteen to twenty feet short of the building line.

'Q. From Olive Street? A. That is right. * * *

'Q. Now can you tell us whether or not this man that was operating that car did he come back to where you people were in that car or did you go up to the front, just tell us what occurred there? A. Well the operator was in front and he only came from around the shade and after we got straightened out he said leave by the front door. * * *

'Q. Now you said something before about these brakes on that streetcar were shattering, is that right? A. That is right.

'Q. What did you mean by that? A. Well noise that when something, tension is brought against, like a brake shoe against the circumference, against the wheel with the car still trying to move but the tension is still against the wheel and naturally it throws a shatter.

'Q. In other words that would be sort of like this, is that what you mean noise like that? A. Grinding.

'Q. Yes, About how long did that last? A. Well lasted long enough to----

'Q. I know it is hard to judge, if you could give us your best judgment I would appreciate it sir? A. Well seconds that is all.

'Q. Just of seconds? A. Yes.

'Q. And then was it, I am not sure that I got this straight exactly, was it before that shattering started or after the shattering started that the jolt took place? A. Well now I could not see the operator and I could not see what pressure or how he was handling the air control but however when he first applied the brakes is when that big and heavy violent jolt took place.

'Q. And then it was a shatter after that, is that right? A. That is right.

'Q. Could you tell us about how far the car moved while this shattering was going on? A. Well of course his brakes was still under tension and I couldn't say.

'Q. Just your best judgment? A. Well he probably moved several, I can't say several feet but he moved some distance. Some distance is one or two feet or----

'Q. You didn't measure it? A. No.

'Q. O.K. Mr. McKeever then again if I understood you correctly when the shattering ceased the street car stopped for a moment? A. Yes.

'Q. And then started up again? A. Then he had his brakes fully released and then he proceeded.

'Q. Up to a point which I believe you said was about fifteen feet from the corner? A. That is right.

'Q. And when the street car stopped up at the corner was there anything unusual about the manner it stopped up there? A. Well they brought it to a stop I would say it was just about the way he stopped at that point.'

It is the testimony set out in question and answer form which defendant contends constitutes proof of specific negligence. Such testimony summarized is, in effect, this: when the operator applied the brakes, there was a violent jolt; thereafter the brakes chattered for some seconds which sounded like a brake shoe rubbing against the wheel when the car was trying to move--it was a 'grinding' noise; the car moved possibly one or two feet while chattering, and thereafter the brakes were fully released and the car moved forward some distance and then came to a stop.

In the first instance, this testimony relating to brakes must be considered in the light of the testimony of the witness to the effect that the operator was hidden from the witness' view by a shade and that therefore the witness did not see the operator prior to or during the occurrence, and in the light of the further testimony of the witness to the effect that he didn't know what was the specific trouble. So viewed, and when it is further noted that no qualifications were shown in evidence to establish the competency of the witness to testify to his conclusions, based as they obviously were on sounds he heard and sensations he felt, it may well be said that this testimony relating to brakes and braking is nothing more than the conclusions of the witness which embody his idea of what may have happened on the occasion in question as opposed to any actual knowledge as to what did happen.

But for the purposes of this case, we shall assume that Mr. McKeever was qualified to state his conclusions from what he heard and felt or that, even if he was not so qualified, in the absence of objection by plaintiff to these parts of this testimony, plaintiff was bound by the witness' conclusions for the purpose of determining whether such testimony proved specific negligence.

Making this assumption, a fair analysis of this testimony requires the conclusion that it establishes or proves only that the violent jolt was caused by the application of brakes by the operator. This testimony does not prove or establish whether the effect of this application of brakes, i.e., the jolt, was caused by improper manipulation of the apparatus by the motorman, and, if so, in what manner improper, or by improper functioning of the braking system after proper manipulation of apparatus by the motorman. Clearly this testimony did not prove or tend to prove one of these permissible inferences, i. e., some negligence in operation, any more than it proved or tended to prove another permissible inference, i. e., some negligence in maintenance of the braking system. And clearly this testimony did not prove what specific negligence, either in operation or maintenance of the brakes and braking system, caused the jolt and plaintiff's resulting injuries.

In this type of case, if plaintiff proves the carrier-passenger relationship, the exclusive control of the vehicle by defendant, a violent and extraordinary jolt and lurch, and that he sustained injuries as a proximate result, he has adduced sufficient circumstantial evidence from which a jury may infer that the cause of plaintiff's injuries was some negligence on the part of the defendant. If plaintiff goes further and proves that the effect of braking caused the jolt, he has eliminated any permissible inference that the jolt was the result of defendant's negligence in colliding with or striking an object, but he has thereby strengthened the permissible inferences that the jolt...