Niklas v. Metz
| Decision Date | 11 July 1949 |
| Docket Number | 41033 |
| Parties | Catherine Niklas, Appellant, v. Carl Metz, Frank P. White and J. Wesley McAfee, Respondents |
| Court | Missouri Supreme Court |
Motion for Rehearing or to Transfer to Banc Overruled September 12 1949.
Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.
Affirmed.
The facts and holding of the case are adequately summarized in the headnote.
Harry C. Avery for appellant.
(1) The negligence count of plaintiff's cause against defendants Frank White and J. Wesley McAfee was properly brought and proved under the doctrine of res ipsa loquitur. Zichler v. St. Louis Pub. Serv. Co., 59 S.W.2d 654; Belding v. St. Louis Pub. Serv. Co., 215 S.W.2d 506; McCloskey v. Koplar, 46 S.W.2d 557. (2) Plaintiff did not go so far as to prove such specific acts of negligence against defendants White and McAfee so as to remove her case from the doctrine of res ipsa loquitur. Semler v. Kansas City Pub. Serv. Co., 196 S.W.2d 197; Belding v. St. Louis Pub. Serv. Co., 215 S.W.2d 506; Conduitt v. Trenton Gas & Electric Co., 31 S.W.2d 21. (3) Plaintiff sustained the burden of proof of general negligence, which she was obligated to do even under the doctrine of res ipsa loquitur, and made a submissible case by the admissions of defendant White. Belding v. St. Louis Pub. Serv. Co., 215 S.W.2d 506; Story v. People's Motor Bus Co. of St. Louis, 37 S.W.2d 898; Gipson v. Fisher Bros. Co., 204 S.W.2d 101; 22 C.J., sec. 323, p. 297. (4) Whether or not defendants exercised the highest degree of care in behalf of plaintiff's husband was for the jury to decide. Lewis v. Zagata, 166 S.W.2d 541; Long v. Mild, 149 S.W.2d 853; Branson v. Abernathy, 130 S.W.2d 562; Case v. St. Louis Pub. Serv. Co., 192 S.W.2d 595; Zichler v. St. Louis Pub. Serv. Co., 59 S.W.2d 654. (5) Plaintiff proved a submissible case of conspiracy to violate the Statutes of Missouri and the rules and regulations of the Missouri Public Service Commission against said defendants. Appellant having made a submissible case of conspiracy against both defendants, the negligence of White is imputed to McAfee. Wooldridge v. Scott County Milling Co., 102 S.W.2d 958; Secs. 5724 (a), 5728, 5727, 5729, 5730, 5731, 5737 R.S. 1939; Laws 1945, pp. 1416, 1418.
Igoe, Carroll, Keefe & Coburn and Richmond C. Coburn for respondent J. Wesley McAfee.
(1) Where a plaintiff pleads res ipsa loquitur, but proves what caused the accident, he loses the benefit of the doctrine. Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932; Conduitt v. Trenton Gas & Elec. Co., 326 Mo. 133, 31 S.W.2d 21; Taylor v. Prudential Ins. Co. of America, 234 Mo.App. 317, 131 S.W.2d 226; Polokoff v. Sanell, 52 S.W.2d 443; Heidt v. People's Motorbus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840; Cook v. Union Electric L. & P. Co., 232 S.W. 248; McAnany v. Shipley, 189 Mo.App. 396, 176 S.W. 1079. (2) This rule has been applied in an action brought by a passenger against a carrier for injuries suffered by the former in a collision. Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932; Heidt v. People's Motorbus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840; Buckland v. N.Y., N.H. & H.R. Co., 181 Mass. 3, 62 N.E. 995. (3) In an action against a carrier where the passenger's proof shows not only the cause of the accident, but also that the accident was not due to the negligence of the defendant, the plaintiff fails to make a submissible case for the jury. Heidt v. People's Motorbus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840; Buckland v. N.Y., N.H. & H.R. Co., 181 Mass. 3, 62 N.E. 995; Risen v. Consolidated Coach Co., 274 Ky. 342, 118 S.W.2d 718; Stafford v. Central Greyhound Lines, 153 Ohio App. 304, 34 N.E.2d 587; Youngstown Municipal Ry. Co. v. Chismar, 54 Ohio App. 481, 8 N.E.2d 156. (4) The trial court properly directed a verdict for the defendant McAfee for the reason that McAfee was not responsible for the acts of the defendant Frank P. White in the operation of the bus. The violation of a statute, ordinance or administrative regulation creates no liability, nor does it prevent the imposition of liability unless proximate causation is shown between the violation and the injury. Koelitz v. Calcaterra, 33 S.W.2d 909; Phelan v. Granite Bituminous Paving Co., 227 Mo. 666, 127 S.W. 318; John C. Kupferle Foundry Co. v. St. Louis Merchants Bridge Term. Ry. Co., 275 Mo. 451, 205 S.W. 57; Blackburn v. S.W. Mo. R. Co., 180 Mo. 548, 167 S.W. 457. (5) There is no causal relationship between the violation of a law requiring a license for the operation of a motor vehicle on a highway and injuries sustained by a person at the hands of the driver of such a vehicle. Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; Frigge v. Brooks, 228 Mo.App. 758, 72 S.W.2d 995; Faust v. East Prairie Milling Co., 20 S.W.2d 918; Dixon v. Boeving, 208 S.W. 279. (6) The doctrine of the case of Wooldridge v. Scott County Milling Co., 102 S.W.2d 958, will not be followed where two or more parties have acted in concert to violate the law, but where it was not the purpose of the conspiracy to injure the plaintiff. Wheat v. Alderson, 234 Mo.App. 346, 130 S.W.2d 650; Waters v. Hayes, 118 S.W.2d 39.
Barrett, C. Westhues and Bohling, CC., concur.
The appellant's husband, Martin Niklas, was killed when a truck struck the left rear end of a bus. Because of his wrongful death she instituted this action against the driver of the truck, the title owner of the bus and the bus operator. The liability insurer of the truck paid the appellant $ 4,500.00 for a covenant not to sue and she now prosecutes the action against the title owner and the bus operator for the balance of $ 10,500.00 under the wrongful death statute. We assume, solely for the purposes of this opinion, that both respondents were operating the bus as public carriers. The appellant's husband was a fare paying passenger upon the bus and we also assume that the appellant initially established, in the presentation of her case, and demonstrated, prima facie, because of the relationship and the occurrence, the right to have the respondents' negligence and consequent liability for her husband's death submitted to the jury. Zichler v. St. Louis Public Service Co., 332 Mo 902, 59 S.W. (2) 654. After making the assumptions the meritorious question upon this appeal, the trial court having directed a verdict for the respondents at the close of the plaintiff's evidence, is whether the plaintiff's evidence, nevertheless, so destroyed her prima facie case that she is not entitled to a res ipsa loquitur submission of her cause of action and the respondents' liability. 38 Am. Jur., Secs. 303-304, 308, pp. 999-1001, 1005; 45 C.J., Secs. 779-780, pp. 1212-1214.
The collision occurred just south of the Y formed by the junction of Highways 40 and 61 on the outskirts of Wentzville. After the collision the bus was stopped about sixty feet north of the Wabash Railroad viaduct. The truck and the bus had collided about seventy-five feet north of the viaduct and the truck had stopped about 350 feet beyond that point. The bus was proceeding south towards St. Louis and the truck was traveling towards the Y. As the bus approached the Wabash viaduct at a speed of approximately thirty-five miles an hour the bus driver saw the truck traveling around the long, sweeping curve, 300 to 350 feet away, down the middle of the highway, the truck wheels astride the center line of the pavement. The truck driver told a highway patrolman that he was traveling at a speed of twenty-five to thirty miles an hour and that the front wheels of the truck had "locked." As soon as the bus driver saw the truck he began to turn the bus to the right off the pavement and after the bus was off the pavement, except the left rear wheel, the truck struck the rear one-third of the bus, tearing out the rear end and side. Tracks on the pavement, made by the truck, began at the center line of the pavement and extended diagonally across the west side of the pavement, a distance of forty-five feet to the bus as it was almost stopped and almost entirely off the pavement on its right side of the highway.
The appellant contends, in proving these facts, that she did not go beyond her prima facie case and prove such acts of specific negligence upon the part of the bus driver as to remove her cause from the application of the doctrine of res ipsa loquitur. She contends that she was entitled to and did prove acts of negligence on the part of the truck driver but that, of course, did not destroy her prima facie case against the carrier. It is argued, against the carrier, since the bus driver saw the truck approaching 350 to 400 feet away in the center of the highway, that the bus must have traveled 250 to 300 feet while the truck traveled 100 feet and, therefore the inference and imputation of negligence could reasonably be drawn against the bus driver. Unquestionably, the plaintiff may adduce some evidence tending to show the particular and precise negligence of the defendants as the specific cause of the collision and yet not be deprived of the right to a res ipsa loquitur submission of her cause. Belding v. St. Louis Public Ser. Co., 358 Mo. 491, 215 S.W. (2) 506; Semler v. Kansas City Public Ser. Co., 355 Mo. 388, 196 S.W. (2) 197. Also, under ordinary circumstances, when a public carrier vehicle and a truck traveling in opposite directions on a highway wide enough for both and each sees the other and yet they collide, there is some reason to suppose that something most extraordinary has happened or the...
To continue reading
Request your trial