Oglesby v. St. Louis Public Service Co.

• Decision Date: 20 September 1960
• Docket Number: No. 30414,30414
• Citation: 338 S.W.2d 357
• Parties: Cassie OGLESBY (Plaintiff), Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 357

338 S.W.2d 357

Cassie OGLESBY (Plaintiff), Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant) Appellant.

No. 30414.

St. Louis Court of Appeals, Missouri.

Sept. 20, 1960.

Donald L. Schmidt, St. Louis, for appellant.

Wood & Raack, William J. Raack and Marvin S. Wood, Clayton, for respondent.

RUDDY, Judge.

This is an action to recover damages for personal injuries alleged to have been suffered by plaintiff while she was a passenger on a streetcar owned and operated by defendant. A jury found in her favor and assessed damages at $2,500. Defendant has appealed.

The sole issue of negligence submitted to the jury, contained in Instruction No. 1, was based on the res ipsa loquitur doctrine. Defendant in its first point contends that it was error to instruct under this doctrine because under plaintiff's pleading and proof she 'has a specific negligence case.' In her pleading plaintiff, after alleging that she was a fare paying passenger on one of defendant's streetcars, further alleged that 'plaintiff was alighting from said streetcar and defendant negligently caused and permitted the doors to close and said streetcar to start up, whereby she was caused to sustain' injuries.

Plaintiff's evidence showed that she was a blind person and that she and her husband boarded a northbound Grand Avenue streetcar at Grand and Olive Streets in the City of St. Louis in the late afternoon of April 15, 1958. Plaintiff was seated on the right side of the streetcar between the front and the rear doors. Plaintiff's husband did not occupy a seat. He stood in the aisle beside plaintiff. It was their intention to get off of the streetcar at the intersection of Grand Avenue and North Market Street.

When the streetcar arrived at Grand Avenue and North Market Street it stopped. After the streetcar came to a full stop plaintiff arose from her seat and was led to the rear doors by her husband. He held her left hand with his right hand as they proceeded down the aisle with the husband leading the way. They did not know if others preceded them in getting off of the streetcar.

When plaintiff and her husband reached the rear doors, her husband continued to hold her hand. They proceeded to alight and started down the steps. The husband reached the ground still holding plaintiff's hand. At this point plaintiff had reached the second step and was in the act of lifting her right foot to make the last step onto the ground when the doors of the streetcar closed on the arm of the husband who was still holding the hand of plaintiff. After the doors closed and while plaintiff was in the act of lifting her right foot to make the last step out of the streetcar, the streetcar started and moved forward causing plaintiff to be thrown and to fall. When the doors closed on the husband's arm and the streetcar started forward some of the passengers shouted to the motorman. Thereafter, the streetcar came to a stop and the doors opened. Plaintiff did not know how far the streetcar moved.

Plaintiff said the doors of the streetcar did not touch her. She could not see the doors close, but could hear them close in front of her, at which time her husband continued to hold her hand. She testified that when the streetcar started 'that gave me a snatch and I was overbalanced.' The husband testified he could not see what happened to his wife, but said, 'I could tell by the movements of my hand from the outside that she was slung * * *.' In describing the movement of the streetcar after the doors closed, he said, 'I know it made a jerk up.' He did not know how far the streetcar moved, stating 'it might have moved five or ten feet, it was so sudden.'

Defendant argues that Plaintiff's Instruction No. 1 is framed under the res ipsa loquitur doctrine but fails to require the jury to find that there was an unusual occurrence. It holds that an unusual occurrence from which negligence can be inferred is a basic element of the res ipsa loquitur doctrine, citing Fuller v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 675, loc. cit. 677, wherein this court said:

'In order to invoke the res ipsa loquitur doctrine there must be evidence of an unusual occurrence of a kind that gives rise to inference of negligence of some sort, the nature of which is unknown to the plaintiff.'

Instruction No. 1 directed the jury, inter alia:

'* * * that if you find and believe from the evidence that on the occasion in question plaintiff was in the act of alighting from defendant's streetcar at the place mentioned in evidence, and that she was accompanied by and holding on to her husband who was preceding her in the act of alighting from said streetcar, and that while plaintiff was so doing, if you so find, the doors of defendant's streetcar suddenly closed on her husband's arm, and defendant's streetcar was started in motion and that as a direct result thereof * * * was * * * injured, if you so find, then the Court instructs you that from such facts aforesaid, if you believe them be true, you may infer that defendant was negligent * * *.'

Defendant asserts that this instruction does not require the jury to find 'any sudden, unusual or extraordinary movement' of the streetcar and that, therefore, the instruction authorizes an inference of negligence from usual and ordinary operation of the streetcar. It is unnecessary for the instruction to require the jury to specifically find that an unusual occurrence took place. It is enough if the facts which the jury are required to find bespeak an unusual occurrence. We think that the facts hypothesized in the instruction relate an unusual occurrence. Certainly, defendant would not contend that the closing of the doors and the starting of the streetcar when a passenger is in the act of alighting is a usual and normal thing in the operation of its streetcars.

In the case of Hall v. St. Louis Public Service Co., Mo., 266 S.W.2d 597, plaintiff had signalled her intention to alight from the bus and when alighting, as she descended the exit steps the door of the bus closed upon her body, holding her partly within and partly without the bus. The bus started forward dragging plaintiff with it. The instruction upon which plaintiff's case was submitted to the jury was predicated upon the theory of res ipsa loquitur negligence. In the Hall case defendant insisted that the instruction did not comply with the requisites of the res ipsa loquitur doctrine, in that it did not require a finding of an unusual occurrence. The instruction upon which plaintiff's case was submitted directed the jury that if it found that 'while plaintiff was in the act of alighting * * * the doors of said bus closed about plaintiff and that (she) was caused to be thrown and injured * * * you may infer that defendant was negligent * * *.' In answering defendant's complaint the court, at loc. cit. 599, said:

'We think this argument begs the question. The closing of the bus doors upon plaintiff's body as she was in the act of alighting from the bus in the usual manner in and of itself bespeaks an unusual occurrence. The fact that the doors closed before she was given time to pass beyond them bespeaks their sudden closing. The fact that they imprisoned her body bespeaks their violent closing.'

The court held that the instruction constituted an adequate submission of plaintiff's case under the res ipsa loquitur doctrine.

In the instant case we have the sudden and unexpected closing of the doors and the sudden starting of the streetcar at a time when plaintiff was in the act of alighting from said streetcar. Defendant in its argument does not seem to contend that the closing of the doors and the starting of the streetcar when the plaintiff was in the act of alighting would not be an unusual occurrence, but seems to contend only that the instruction should have directed the jury to further find that these facts, if believed, constituted an unusual occurrence. Such a direction was unnecessary. The facts hypothesized in the instruction, if found to be true by the jury, bespeak an unusual occurrence from which negligence may be inferred.

Defendant makes a further contention in connection with the submission of the case under the res ipsa loquitur doctrine. It asserts that plaintiff's pleading and proof demonstrated specific negligence and, therefore, the court was without authority to submit the case to the jury under the res ipsa loquitur doctrine.

Defendant in support of this contention cites Hoffman v. St. Louis Public Service Company, Mo., 255 S.W.2d 736, wherein the Supreme Court approved an instruction submitting the case to the jury on specific negligence when the evidence showed that the bus moved when plaintiff was in the act of boarding it and that plaintiff did not know what caused the bus to move.

However, in an opinion in the Hall case, supra (266 S.W.2d loc. cit. 600) handed down subsequent to the Hoffman case, the Supreme Court En Banc, in disposing of a contention similar to the one presented in the instant case, quoted with approval from the case of Williams v. St. Louis Public Service Company, 363 Mo. 625, 253 S.W.2d 97, as follows:

"Appellant insists that, if the evidence is sufficient to make out a submissible issue or prima facie case as to any specific negligence of the defendant which may have been the proximate cause of his injury, the cause may not be submitted under the res ipsa loquitur doctrine. Such is not the rule in this state. The applicable rule appears from the cases above cited. The pleadings and evidence may be such that a cause may be submitted on either general or specific negligence at plaintiff's election. Submission under the res ipsa loquitur doctrine may not be denied unless specific negligence, the real or precise cause is definitely shown by direct evidence.' See also Killinger v. Kansas City Public Service Co., Mo.Sup., 259 S.W.2d 391, 395.'

The facts in the Hall case parallel the facts in this case,...