Phen v. All American Bus Lines, Inc.

• Decision Date: 10 February 1941
• Docket Number: Civil 4279
• Citation: 110 P.2d 227,56 Ariz. 567
• Parties: HELEN SPRAGUE ZELIFF PHEN, Appellant, v. ALL AMERICAN BUS LINES, INC., a Corporation, and CLYDE E. HENDRIX, Appellees
• Court: Arizona Supreme Court

110 P.2d 227

56 Ariz. 567

HELEN SPRAGUE ZELIFF PHEN, Appellant, v. ALL AMERICAN BUS LINES, INC., a Corporation, and CLYDE E. HENDRIX, Appellees

Civil No. 4279

Supreme Court of Arizona

February 10, 1941

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.

Mr Theodore G. McKesson and Mr. Francis M. Sasse, for Appellant.

Mr Henderson Stockton, Mr. Eli Gorodezky, Mr. S. N. Karam, and Mr. J. W. Cherry, Jr., for Appellees.

OPINION

LOCKWOOD, C.J.

This is an appeal by Helen Sprague Zeliff Phen from an instructed verdict and judgment against her in an action wherein she was plaintiff and All American Bus Lines, Inc., a corporation and Clyde E. Hendrix were defendants.

The case came on for trial before the court sitting with a jury, and plaintiff testified, in substance, that on October 4, 1937, she was a paid passenger on the bus of defendant company which at the time was driven by defendant Hendrix; that while she was reclining and sleeping in the front seat on the left-hand side of the bus behind the driver, she was suddenly thrown from her seat to the floor and sustained severe bodily injuries, but knew nothing personally as to the physical facts which caused these injuries. She further offered the testimony of the defendant driver to the effect that her fall and injury were the result of a collision between the bus of defendant company and another automobile driven by a man named Lombard. This was all the evidence offered on behalf of plaintiff except as to the extent of her injuries. Defendant company produced some five witnesses who were also passengers on the bus at the time of the collision and who were shown to be in no way interested in the result of the case. Their testimony was, in substance, that the bus at the time of the collision was in its proper location on the right-hand side of the center of the road, proceeding at a reasonable rate of speed, and that the automobile driven by Lombard swerved from its proper side of the road and ran directly into the bus about two feet back of the front end of its left-hand side, the impact throwing plaintiff from her seat. There was also testimony from a passerby to the same effect as to the collision. Plaintiff offered no evidence tending in any way to contradict the statement of these six witnesses.

The appeal is predicated upon the theory that the rule of res ipsa loquitur applied and that such being the case the question of whether defendant was negligent was for the jury and not for the court. There is probably as much confusion over the meaning, applicability and effect of this rule as over any other principle of law. We think the general rule may be illustrated thus: A is injured as a result of an accident and brings suit against B, alleging the latter to have negligently caused the accident. If the ordinary reasonable man, knowing merely the physical facts and circumstances surrounding the accident, but not the cause thereof, would say to himself that under the common experience of mankind the accident would not have happened if defendant had not been negligent, the law applies the rule of res ipsa loquitur and the jury is permitted to infer from these circumstances, if it so desires, that the negligence of defendant was the cause of the accident. The application of this rule, however, is limited by certain things: (a) The apparatus or thing causing the accident must be such that under ordinary circumstances no injurious operation would be expected unless from the careless construction, inspection or user thereof; (b) both the inspection and the user of the apparatus must have been...