Missouri Pacific Transportation Co. v. Bell

• Decision Date: 05 December 1938
• Docket Number: 4-5262
• Citation: 122 S.W.2d 958,197 Ark. 250
• Parties: MISSOURI PACIFIC TRANSPORTATION CO. v. BELL
• Court: Arkansas Supreme Court

122 S.W.2d 958

197 Ark. 250

MISSOURI PACIFIC TRANSPORTATION CO. v. BELL

4-5262

Supreme Court of Arkansas

December 5, 1938

Appeal from Clark Circuit Court; Dexter Bush, Judge; reversed.

Judgment affirmed.

House Moses & Holmes, T. J. Gentry, Jr., and Eugene R. Warren, for appellant.

F D. Goza and J. H. Lookadoo, for appellee.

MCHANEY J. HUMPHREYS, MEHAFFY and BAKER, JJ., dissent.

OPINION

MCHANEY, J.

Appellee, a passenger on one of the Missouri Pacific buses on October 20, 1937, from Little Rock to Gifford, Arkansas, brought this action against appellants to recover damages for personal injuries she alleges she sustained when she fell in the bus while alighting therefrom. The negligence alleged in the complaint was that the driver stopped the bus for her to alight at her destination and that he "carelessly and negligently permitted said bus to start again and roll down the highway several feet without being under control by him, after having stopped said bus, and while plaintiff was walking down the aisle in said bus for the purpose of alighting. That after said bus had rolled down the highway for several feet and while plaintiff was walking in the aisle of said bus as aforesaid, the defendant, J. N. Wright, carelessly and negligently stopped the bus very suddenly by means of the brake," causing her to fall and receive severe and painful injuries. Appellants answered, denying generally and specifically all the material allegations of negligence and injuries alleged. Trial resulted in a verdict and judgment for appellee in the sum of $ 15,000. The case is here on appeal.

We think the court erred in refusing to direct a verdict for appellants at their request. The complaint alleged a cause of action, but the proof failed to sustain it, in that it failed to establish that, after the bus first came to a stop to permit the appellee, her husband and little girl to alight, it was started again and was stopped with a sudden, unnecessary and violent jerk causing her to fall and receive all the terrible injuries described in the evidence.

Her testimony on the question of negligence is, when asked how she received her injuries, she answered: "Well, when we got to the top of the intersection where we were supposed to get off, there is a hill there. My husband told him when we got there we wanted to get off, that when he got there he went about middleways and stopped the bus, opened the door and throwed on the lights and we proceeded to get up and get out. He and the girl were ahead of me on the bus and they got three or four steps ahead of me on the bus, and when I got up and started up the aisle, the bus jammed, I guess, the brakes, and threw me across the bus and down between the seats." Again she was asked by her counsel:

"Q. Mrs. Bell, what really caused you to fall?

"A. The stopping of the bus.

"Q. The sudden stopping of the bus?

"A. The sudden stopping of the bus."

This was all the testimony she gave as to the negligence of the driver. Her husband, a witness in her behalf, testified as follows: "Q. She claims to have fallen by reason of a jerk or sudden stopping of the bus--what do you know about that? A. The bus made a second stop. Q. Tell just what happened? A. Well, when I pulled the cord and told the driver that we wanted off at the intersection, he pulled up and stopped about where he ordinarily stopped and let us off north of the intersection. I don't know why he never did pull down in front--I guess on account of the traffic--and the little girl was on the seat with me, and if the court will permit it, I could start back at Little Rock and tell something-- Q. Go ahead and tell about getting off there? A. The little girl was in the seat with me and when he opened the door, I immediately got up and out of my seat and proceeded to the front of the bus, and just before I got to the front of the bus I noticed the bus was slowly moving again and just at that instant he applied the brake again and I caught to the baggage carrier and got off the bus, and when I got off I looked back and my wife wasn't in sight and I stepped on the step and she had come on, holding to the corner of the last seat." Another witness, who claims to have driven his car up to the intersection of a side road with highway 67 on which the bus was traveling, stated that the bus came to a stop, rolled a few feet and stopped again, but he did not testify as to any sudden, unnecessary or violent jerk of the bus in either stop. This was all the evidence on the subject for appellee. Seven other passengers on the bus and the driver, appellant Wright, testified that the bus came to a full stop in the ordinary way without any jerk, that the driver turned on the lights, opened the door and got on the outside to assist appellee, her husband and little girl to alight, and that the bus did not move and was not stopped again while they were alighting. But assuming the testimony of these seven disinterested passengers, constituting as it undoubtedly does the great preponderance of the evidence, testified falsely, and that appellee and her husband, both vitally interested in the result of the action, testified truthfully, still it is insufficient to show that appellee was thrown by reason of a second stop which was unusual, unnecessary or a violent jerk. They do not contend that the motor was put in gear to start the bus a second time, but only that it was stopped on a slight decline of about 3/4 inch in two feet and was permitted to roll down this decline about 4 or 5 feet when it was again stopped by the application of the brakes. Now, if the bus moved from a dead stop down such a slight decline for only 4 or 5 feet, it would seem to be a physical impossibility for the bus to have gained enough momentum or speed to have caused a sudden, unnecessary or violent jerk, sufficient to upset a normal person standing in the aisle and cause the terribly disabling injuries to appellee, about which she and her witnesses have testified.

When asked by her counsel as to what "really" caused her to fall, she answered: "The stopping of the bus;" and when prompted further by counsel, she said "The sudden stopping of the bus." She says nothing about the second stopping of the bus. It is undoubtedly true that appellee fell in the bus, and it may be true that she was injured in the fall, but the proof fails to show that it was the result of the second stopping of the bus, or that the second stopping, if any, was sudden, unnecessary or violent, and these were the grounds of negligence relied on in the complaint and without proof of which no recovery can be sustained.

At one place in her testimony appellee, in answer to a question as to the statement she made at the time she got off the bus that her foot slipped, testified: "I don't know. I said my feet slipped--it was like ice. I know my feet went out from under something. Q. You said your feet went out from under you and caused you to fall? A. I don't know what I said. Q. You said it was like ice. A. I said my feet went out from under me like I was standing on ice. Q. Didn't you state that your foot slipped on something? A. I don't know whether I did or not." That was what she said right at the time of the accident. Whether her injuries were the result of her feet slipping out from under her or whether she fell when the bus stopped is not material to the inquiry here. Before there can be a recovery the negligence alleged must be established by proof, and as we have shown, it is not sufficient. Juries are not permitted to base their verdicts on speculation and conjecture, and as to whether there is any substantial evidence to support the verdict is a question of law and not of fact. Murphy v. Murphy, 144 Ark. 429, 222 S.W. 721; Fair Store No. 32 v. Hadley Milling Company, 148 Ark. 209, 229 S.W. 727.

For the error of the court in refusing to direct a verdict for appellant, the judgment is reversed, and, as the cause appears to have been fully developed, it is dismissed.

HUMPHREYS MEHAFFY and BAKER, JJ., dissent.

DISSENT BY: MEHAFFY

MEHAFFY J. (dissenting). I cannot agree with the majority in reversing and dismissing this case. The majority opinion says:

"Whether her injuries were the result of her feet slipping out from under her, or whether she fell when the bus stopped, is not material to the injury here. "

It is, also, said in the opinion: "But assuming the testimony of these seven distinterested passengers, constituting as it undoubtedly does the great preponderance of the evidence, testified falsely, and that appellee and her husband, both vitally interested in the result of the action, testified truthfully, still it is insufficient to show that appellee was thrown by reason of a second stop which was unusual, unnecessary, or a violent jerk."

It is not a question of whether it was an unusual, violent jerk, nor is there any question here as to who told the truth. That question is settled by the jury's verdict. This court and practically all of the other appellate courts in the country, have held that carriers of passengers must exercise the highest degree of care for the protection of their passengers, and if guilty of slight negligence, which causes the injury of a passenger, the carrier is liable.

"A common carrier of passengers by street car is required to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons employed in that business, in view...