Palmer v. Brooks

• Decision Date: 02 March 1943
• Docket Number: 38321
• Citation: 169 S.W.2d 906,350 Mo. 1055
• Parties: Curtis Palmer, by Next Friend, Robert Hoops, Respondent, v. A. F. Brooks, d. b. a. East Side Ice & Fuel Company, and James Brooks, Appellants
• Court: Missouri Supreme Court

169 S.W.2d 906

350 Mo. 1055

Curtis Palmer, by Next Friend, Robert Hoops, Respondent, v. A. F. Brooks, d. b. a. East Side Ice & Fuel Company, and James Brooks, Appellants

No. 38321

Supreme Court of Missouri

March 2, 1943

Rehearing Denied April 6, 1943.

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Affirmed.

Kelsey Norman and Henry Warten for appellants.

(1) There is no evidence of negligence on the part of defendants upon which the court's verdict and judgment in favor of plaintiff can be supported. The evidence herein shows simply an accident. The burden was on the plaintiff to produce evidence of negligence; it could not be inferred from the mere fact that the truck turned over or that the accident happened. The most that can be said of the evidence in the case at bar, such as there is, is that it is capable of an interpretation equally consistent with the presence or absence of a wrongful act. This being so, that meaning must be given which accords with the absence of a wrongful act. Klein v. Beeten, 172 N.W. 736, 5 A. L. R. 1237; Riley v. Wooden, 165 A. 738; Lahr v Tirrill, 8 N.E.2d 298; State ex rel. Brancato v. Trimble, 18 S.W.2d 4; Estes v. Estes, 127 S.W.2d 78; Dunlap v. K. C. Public Service Co., 130 S.W.2d 658; State ex rel. Thompson v. Shain, 159 S.W.2d 582; Grindstaff v. J. Goldberg & Sons Structural Steel Co., 40 S.W.2d 702; Wills et al. v. Berberich's Delivery Co., 134 S.W.2d 125; Pedigo v. Roseberry, 102 S.W.2d 600; Tappin v. Prebe, 131 S.W.2d 511; McGrath v. St. Louis Transit Co., 197 Mo. 97, 104, 94 S.W. 572. (2) The verdict and judgment of the court awarding to plaintiff the sum of $ 8000 for his injuries is grossly excessive and without foundation or support in the evidence. Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Ulmer v. Farnham, 28 S.W.2d 113; Clark v. Mississippi River & B. T. Ry., 23 S.W.2d 174; Gardner v. Stout, 119 S.W.2d 790.

Roy Coyne and Emerson Foulke for respondent.

(1) This was a clear case for the application of the res ipsa loquitur rule. It was pleaded in the petition, tried on that theory in the lower court and is well supported by the evidence. A truck being driven down a smooth and level gravel road 18 feet wide at 30 to 35 miles per hour does not ordinarily overturn if those in charge use due care, and the courts of Missouri have held that this is such an unusual occurrence as to justify the application of the res ipsa loquitur rule. When the evidence further showed that the truck was in the exclusive care and control of the defendants and that the defendants, one driving the car and the other sitting beside him, had superior knowledge and means of information as to the cause of the truck turning over, and failed to show that they were not guilty of negligence, the evidence was sufficient to support a verdict for the plaintiff. McCloskey v. Koplar, 46 S.W.2d 557; Harke v. Haase, 75 S.W.2d 1001; Tabler v. Perry, 85 S.W.2d 471; Evans v. Mo. Pac. Ry. Co., 116 S.W.2d 8; Adams v. Le Bow, 160 S.W.2d 826; Vesper v. Ashton, 118 S.W.2d 85. (2) A judgment of $ 8000 is not excessive for a 16 year old boy who suffered a fracture of the inner table of the skull on the right and left side near the mid line and who had to quit school, had to quit work, suffers from headaches and dizziness and from watering of the eyes and pain in the back, and pain in the knees and pain in his foot and may have paralysis as result of the skull fracture. Stonel v. Reid Bros. Express and Transfer Co., 33 S.W.2d 948; Ramey v. Mo. Pac. Ry. Co., 21 S.W.2d 873; Keyes v. Chicago, B. & Q. Ry. Co., 31 S.W.2d 59; Colwell v. Frisco, 73 S.W.2d 222; Yakubinis v. M., K. & T. Ry. Co., 127 S.W.2d 943; Oesterle v. Kroger Gro. & Baking Co., 141 S.W.2d 780; Holman v. Terminal R. Assn. of St. Louis, 125 S.W.2d 527; McPherson v. Premier Service Comm., 38 S.W.2d 277.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action for personal injury. The cause was tried by the court without a jury and judgment went in favor of plaintiff for $ 8,000. Motion for a new trial was overruled and defendant appealed.

Defendant A. F. Brooks is a coal and wood dealer in Joplin, Missouri, and defendant James Brooks is his son. Plaintiff is a colored boy and was 16 years old at time of injury which was caused by the overturning of a truck upon which he was riding. The truck was owned by defendant A. F. Brooks and driven at the time (September 3, 1941) by his son, James. The truck was a 1 1/2 ton Chevrolet, and was loaded with slab wood, and was traveling north on a gravel road, highway H in Newton County, Missouri, about one-half mile south of the town of Aroma. Defendants and Blackburn Stout were riding in the cab. Plaintiff and Raymond Hayes, who was killed in the turnover, were riding on top of the slab wood.

The negligence alleged is as follows: That defendants "so negligently and carelessly drove and operated the said motor truck that the same was caused to overturn and the plaintiff, who was at all the times herein mentioned exercising ordinary care for his own safety, was thereby caused to be thrown therefrom with great force and violence, and was severely and permanently injured; that the said injuries sustained by plaintiff were caused solely by the negligence and carelessness of the defendants in the following respects, to wit:

"That the defendants were in sole and exclusive control, management and operation of the said motor truck on which plaintiff was then and there riding along highway H, as aforesaid, and that the overturning of the said motor truck and the injuries sustained by the plaintiff were such unusual occurrences that same could not have happened except for the negligence of said defendants."

Defendants answered jointly by general denial, "except the allegations that at the time of the accident the said automobile truck was being driven and operated by the said James Brooks in the scope of his employment and on the business of the defendant, A. F. Brooks."

Defendants (appellants) make two assignments, viz.: (1) That there was no substantial evidence that defendants were negligent; and (2) that the damages assessed by the trial court are excessive. Plaintiff contends that this is "a clear case for the application of the res ipsa loquitur rule" and that the judgment for $ 8000 is not excessive.

Some facts were stipulated and by agreement excerpts from the depositions of defendants and Stout, taken in a cause in the federal district court, were read in evidence. These excerpts constitute the evidence as to what occurred, and this evidence follows:

A. F. Brooks testified that he had an accident on highway H, a reasonably level gravel road, about 18 feet in width; that shallow ditches were on either side; that the truck, driven by his son, was traveling north between 30 and 35 miles per hour, and that such was the speed since they "left the timber"; that as they "approached" near the place where "the accident happened", he saw an object, "lying near the center of the road, a little bit to the left of the center", a little while before they got to it; that he thought it was a piece of paper; that there was also a hay wagon on the right hand side of the road, going north, in front of them; that his son pulled to the left to pass the hay wagon; that about 40 or 50 feet before they got to the object he saw that it was a piece of iron. "Q. You think you saw what it was as soon as you could? A. Well, yes. It was laying in that loose gravel, and it was real hard to detect what it was. Q. You have the object, haven't you, yet? A. Yes. Q. Describe its size and appearance. A. Well, it was about 10 inches across, and it was about 4 inches high, or 5, somewhere along about there. It was the top of a hot blast stove, is what it was. Q. What happened now after that point when you saw and realized that this was an iron object on the road? A. Well, it was done so quick, you couldn't hardly describe it. When we hit that object, of course it -- my judgment is that it blew the tire causing us to list to the left side of the road. Q. The truck did hit the object? A. Yes. Q. Do you know what part of -- which wheel on the truck struck the object? A. Well, no, I don't. I did think I knew, but I -- it was just so quick and the tire that I thought hit it and blew out, after I got the true facts of the business, wasn't the tire that blowed out; so I would say that I don't know just what happened, and there is a possible chance that the left front wheel hit the object. I mean the right front wheel, throwing the object to the left rear wheel. I don't know what the situation was there."

A. F Brooks further testified that everything was all right until the object was struck; that the object was struck when the truck was "just about even" with the hay wagon. "Q. And then you hit the object, and you felt a list to the left, and then what happened? A. Well, we were -- it throwed us into the ditch on the left side of the road, and he cut it to the right, and we got out, and he -- of course, that put it crosswise of the road and he -- before he could get it straightened up he was too far to the east side of the road, and it caught the gravel and rocks that was along there and held the front end and then the -- it commenced, we commenced to rock. Of course, you know when they come out of the ditch on the left side, naturally we were in a kind of a motion, and the truck pulled over on the right side, and then when it caught that gravel it turned to the left side and just went into the ditch and turned the truck -- in other words, the truck started to cross the road approximately, say this was square (indicating) at approximately that angle, and then when the front wheels caught that gravel, the force of that started...