Payne v. Stott

• Decision Date: 08 May 1944
• Docket Number: No. 20433.,20433.
• Citation: 181 S.W.2d 161
• Parties: PAYNE v. STOTT.
• Court: Missouri Court of Appeals

181 S.W.2d 161

PAYNE v. STOTT.

No. 20433.

Kansas City Court of Appeals. Missouri.

May 8, 1944.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

"Not to be published in State Reports."

Action by Marie Payne against W. E. Stott, doing business as Safety Service Cab Company, for injuries suffered by taxicab passenger. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

M. H. Silverforb, of Kansas City, for appellant.

Scarritt, Jones & Gordon, of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,200, and defendant has appealed.

The facts show that defendant is engaged in the business of carrying passengers, for hire, by means of taxicabs; that on December 24, 1941, plaintiff was a passenger, having paid her fare, in one of defendant's cabs, he being the driver thereof; that as the cab was proceeding toward the south, on Jackson Avenue, in Kansas City, and approaching 24th Street, it came to a sudden stop, throwing plaintiff to the floor of the cab, resulting in her receiving personal injuries.

Plaintiff testified that she was seated in the right-hand corner of the back seat of the taxicab "rather relaxed"; that she could see to the left of the cab but was not looking anywhere in particular; that the taxicab was proceeding at a rate of speed of 25 miles per hour when it came to a sudden and unexpected stop; that "it was like going against a stone wall"; that she was thrown to the bottom of the cab; that she was wearing a watch which "was thrown off" of her wrist and became lodged under the front seat.

Defendant testified that the night was clear; that there was no moisture on the ground; that the visibility was good; that he was proceeding at a rate of speed of about 25 miles per hour, when another car, parked along the curbing to his right, suddenly turned in front of him; that he put on his brakes and came to a stop; that he was unable to pull out toward the left because another car was approaching from the opposite direction; that when the parked automobile was about 20 or 30 feet ahead of him it pulled out, giving no warning; that it was proceeding at a rate of speed of about 10 miles per hour and increased its speed "just a little"; that when he came to a stop the car that pulled out was about 30 feet away; that plaintiff was seated in the back seat of the taxicab "kind of at an angle".

Plaintiff testified that she did not see the car pull away from the curb (evidently she was not looking in that direction) but was informed by the defendant after the taxicab stopped, that it had done so; that she saw the car afterwards and that it was standing about 20 or 30 feet in front of the taxicab. She further testified that, while she was not giving any special attention to anything at the time the taxicab stopped, she saw no car approaching from the south; that "I was looking in no particular direction sitting like this (indicating), I was just looking out where if anything had come to my attention from the side, from the left side or from the front, I would have seen it, but I was looking nowhere special". She stated that she heard no horn sounded before the sudden stopping of the taxicab and that she was not asleep.

Defendant insists that his instruction in the nature of a demurrer to the evidence should have been given, for the reason that, if it be conceded that plaintiff's evidence gives rise to a presumption of negligence on defendant's part, his evidence shows that he was free from negligence, and the presumption took flight.

Defendant misconceives the nature of the presumption involved.

The character of the presumption arising in a res ipsa loquitur case is in the nature of one of fact and not a pure legal presumption. Plaintiff's evidence gave rise to an inference or a presumption or prima facie presumption of negligence on defendant's part (McCloskey v. Koplar et al., 329 Mo. 527, 46 S.W.2d 557, 563, 92 A.L.R. 641), and it was not overcome, as a matter of law, by defendant's evidence. Hunt v. Missouri R. Co., 14 Mo.App. 160; Kilroy v. Kansas City & K. V. R. Co., Mo.App., 195 S.W. 522; Traynor v. Wells, Mo.App., 273 S.W. 1100; Rhodes v. Missouri Pac. R. Co., 213 Mo.App. 515, 255 S.W. 1084.

In addition to this, defendant's excuse for making a sudden and violent stop was that a car pulled out from the curb ahead of him. He says he first saw the car when it was about 30 feet from him and that it was proceeding at a rate of speed of about 10 miles per hour and its speed was increased. Defendant testified that his taxicab was going about 25 miles per hour. So, it was within the province of the jury to conclude that the casualty could have been avoided had defendant merely slowed down his taxicab instead of stopping it; that he could have done this without striking the other car. This is not a case where defendant was confronted with a stationary object. The other car was proceeding away from him. His explanation as to why he did not swerve to the left, also, was for the attention of the jury. His excuse was that there was a car approaching from the opposite direction; but it was within the province of the jury to find, from plaintiff's evidence, that there was no such car approaching.

Defendant insists that the court erred in giving plaintiff's instruction No. 1. This instruction is quite long and it is not necessary to set it forth herein. An examination of it shows that it is the approved and conventional instruction usually given in res ipsa loquitur cases. It is insisted that the instruction is erroneous because there is no charge of negligence contained in the petition; that the attempted charge constitutes merely the conclusions of the pleader.

The petition charges that defendant was engaged in transporting motor vehicle passengers for hire and that plaintiff was a passenger in defendant's taxicab, having paid her fare, and that when the taxicab approached 24th Street "defendant operated, managed and controlled his said taxicab in such a negligent and careless manner that plaintiff was suddenly and violently thrown against the floor, sides and interior of said taxicab and was severely and permanently injured".

We think there is no question but that the petition sufficiently alleges general negligence and that plaintiff was entitled to go to the jury on the theory of res ipsa loquitur. Rhodes v. Missouri Pac. R. Co., supra.

However, it is insisted that the instruction ignores two defenses: (1) that of contributory negligence and, (2nd) the "sole cause instruction". It is also claimed that the court erred in refusing defendant's instruction on contributory negligence. Although contributory negligence was pleaded in the answer, the issue was not submitted to the jury in any instruction. Plaintiff insists that there is no evidence tending to show contributory negligence on her part.

Defendant's theory of the facts in this connection is stated as follows: "According to her own statement, she was sitting in the back seat of the automobile in a diagonal direction making no effort to protect herself in case it became necessary for the driver to make a sudden stop. This plaintiff was bound to know that in traffic, especially on Christmas Eve night, in all reasonable probability, the driver would be confronted with persons driving in front of him and pulling out from the curb in front of him where it would be absolutely necessary for him to make sudden stops or quick turns in order to avoid serious accidents, yet she took no steps to protect herself therefrom and was in all probability asleep."

In answer to this argument plaintiff states: "It was true, as defendant asserts, that `in all reasonable probability the driver would be confronted with persons driving in front of him and pulling out from the curb', no one knew that better than defendant, and it was his duty to...