Mueller v. St. Louis Pub. Serv. Co.

• Decision Date: 13 September 1948
• Docket Number: No. 40448.,40448.
• Citation: 214 S.W.2d 1
• Parties: ISABELLA MUELLER, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.
• Court: Missouri Supreme Court

214 S.W.2d 1

ISABELLA MUELLER, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.

No. 40448.

Supreme Court of Missouri.

Division Two, September 13, 1948.

Motion to Modify Opinion Sustained, October 11, 1948.

Motion for Rehearing or to Transfer to Banc Overruled, October 11, 1948.

Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.

REVERSED AND REMANDED (with directions).

Mark D. Eagleton, Mortimer A. Rosecan, and Roberts P. Elam for appellant.

(1) The plaintiff's evidence, having shown that she was injured while a passenger on one of defendant carrier's motor busses and while in the act of alighting therefrom, when the exit door of the bus closed and caught her leg and foot and the bus immediately thereafter started in motion and moved, established a set of circumstances to which the doctrine of res ipsa loquitur was peculiarly applicable, and which met all the tests for the application of that doctrine. McPherson v. Hudson & M.R. Co., 100 N.J.L. 262, 127 Atl. 23, opinion modified 101 N.J.L. 410, 128 Atl. 231; Craft v. Boston Elevated R. Co., 211 Mass. 374, 97 N.E. 610; Fitzgerald v. Boston Elevated R. Co., 274 Mass. 287, 174 N.E. 491; Murray v. Murray, 264 App. Div. 134, 34 N.Y.S. (2d) 629; Zimmerman v. Kansas City Pub. Serv. Co., 226 Mo. App. 369, 41 S.W. (2d) 579; Bell v. Central Electric Ry. Co., 125 Mo. App. 660, 103 S.W. 144; 3 Shearman & Redfield on Negligence, Rev. Ed., pp. 1311-1312, sec. 514; 3 Shearman & Redfield on Negligence, Rev. Ed., pp. 1341-1343, sec. 523; San Juan L. & P. Co. v. Requena, 224 U.S. 89, 32 S. Ct. 399, 56 L. Ed. 680; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W. (2d) 969; Mayne v. Kansas City Rys. Co., 287 Mo. 235, 229 S.W. 386; McCloskey v. Koplar, 329 Mo. 527, 46 S.W. (2d) 557; Powell v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 1016, 81 S.W. (2d) 957; Lober v. Kansas City, 74 S.W. (2d) 815; Evans v. Mo. Pac. R. Co., 342 Mo. 420, 116 S.W. (2d) 8; Jesionowski v. Boston & M.R. Co., 329 U.S. 452, 67 S. Ct. 401. (2) The testimony of plaintiff, which was all of her evidence relating to the closing of the bus exit door upon her leg and foot, and to the starting of the bus, did not establish specific negligence on the part of defendant's bus operator. Siegel v. M.-K.-T.R. Co., 342 Mo. 1130, 119 S.W. (2d) 376; Riggs v. Metropolitan Street R. Co., 216 Mo. 304, 115 S.W. 969; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W. (2d) 1079.

Mattingly, Boas & Richards and Lloyd E. Boas for respondent.

(1) The evidence failed to disclose any unusual occurrence justifying the application of the res ipsa loquitur doctrine. Harke v. Haase, 335 Mo. 1104, 75 S.W. (2d) 1001; Gibbs v. General Motors Corp., 166 S.W. (2d) 575, 350 Mo. 431; Gordon v. Muehling Pkg. Co., 328 Mo. 123, 40 S.W. (2d) 693; Palmer v. Brooks, 169 S.W. (2d) 906, 350 Mo. 1055; Charlton v. Lovelace, 173 S.W. (2d) 13, 351 Mo. 364; Grindstag v. J. Goldberg & Sons Structural Steel Co., 328 Mo. 72, 40 S.W. (2d) 702. (2) It is the character of the accident and not the relationship of the parties that determines the applicability of the res ipsa loquitur doctrine. Gordon v. Muehling Pkg. Co., supra; Noce v. St. Louis-S.F. Ry. Co., 85 S.W. (2d) 637, 337 Mo. 689; Hart v. Emery, Bird, Thayer D.G. Co., 118 S.W. (2d) 509, 233 Mo. App. 312. Plaintiff's evidence established specific negligence by showing the particular servant and the act that caused her injury and prejudicial error was committed in submitting a case on the res ipsa loquitur doctrine. Hoeller v. St. Louis Pub. Serv. Co., 199 S.W. (2d) 7; Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W. (2d) 767; Hughes v. E. St. Louis City Lines, 194 S.W. (2d) 440; Berry v. K.C. Pub. Serv. Co., 121 S.W. (2d) 825, 343 Mo. 474. (4) Appellant was bound by her testimony showing the particular, individual and specific cause of her injury and the trial court properly concluded that it was reversible error to permit her to submit on the res ipsa loquitur doctrine. Conduitt v. Trenton Gas & Elec. Co., 31 S.W. (2d) 21, 326 Mo. 133; Sanders v. City of Carthage, 51 S.W. (2d) 529, 330 Mo. 844; Hoeller v. St. Louis Pub. Serv. Co., supra; Powell v. St. Joseph Ry., L.H. & Power Co., supra. (5) The trial court properly sustained respondent's motion for a new trial on assignment No. XVIII. Powell v. St. Joseph Ry., L., H. & Power Co., 81 S.W. (2d) 959, 336 Mo. 1016; Rose v. St. Louis Pub. Serv. Co., 205 S.W. (2d) 559.

LEEDY, J.

Isabella Mueller instituted this action against St. Louis Public Service Company for $30,000.00 damages on account of injuries alleged to have been suffered by her in attempting to alight from defendant's motor bus on which she was a passenger. The jury returned a verdict in her favor for $15,000.00, which the trial court set aside and sustained defendant's motion for a new trial. Plaintiff appeals from that order.

The petition charged general negligence, and the submission was under the res ipsa loquitur doctrine. The trial court sustained those grounds of the motion for a new trial which, in substance, complained: (1) That the evidence failed to show an unusual occurrence which would give rise to an inference of negligence, and so justify the application of the res ipsa doctrine; and (2) that plaintiff's evidence established specific negligence by showing the particular servant and the act that caused plaintiff's injuries, thus making such doctrine inapplicable. Such are the limited issues presented by this appeal. We treat them in the inverse order of their statement.

[1] The facts are brief insofar as the crucial questions in the case are concerned. There was no denial of the fact that plaintiff was injured as she was in the act of alighting from the bus at a regular down town stop. The bus had been stopped, and the exit door opened for the discharge of passengers. Plaintiff testified that as she placed her left foot on the sidewalk and started to draw her right foot out of the exit door, the door closed and caught her leg and foot; that the bus immediately thereafter started up, and she swung around and grabbed hold of a window. She was carried (on the outside of the bus) in this position for a considerable distance before the bus was brought to a stop, and she was released. Contending that plaintiff's testimony shows the precise cause of the casualty, defendant points to the several places in her testimony describing the accident wherein she stated that the bus driver closed the door and started the bus up. It is true she did so testify. However, it further appears from her testimony that she did not see, and was in no position to see, the bus driver or the controls just prior to and at the time the door closed, nor to know what, if anything, he did in connection with closing the door and starting up. There were other passengers on this crowded bus who were standing in the aisle between plaintiff and the driver. She, of course, was facing the street as she was getting off. She testified she was not watching what the bus driver did. It is apparent that her statement that the bus driver closed the door and started the bus constituted nothing more than her conclusion, and, when taken in connection with her other testimony just referred to, the matter is brought within the rule that "even though the plaintiff introduce evidence tending to show specifically the cause of the accident, the benefit of the rule res ipsa loquitur will not be waived or lost if by this evidence the cause is still left in doubt or is not clearly shown; but, where the precise cause is shown, there is no occasion or room for the application of a presumption." Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 143, 31 S.W. 2d 21, 25; Stubblefield v. Federal Reserve Bank, 356 Mo. 1018, 204 S.W. 2d 718. See, also, 38 Am. Jur., Negligence, Sec. 299. We hold there was no such showing of the precise cause as to deprive plaintiff of the benefit of the res ipsa loquitur doctrine.

[2] It was the contention of defendant, with which the trial court on consideration of the motion for new trial agreed, that there was no such unusual occurrence as to bring the case within the res ipsa loquitur rule, and this...