Pickwick Stages Corp. v. Messinger, Civil 3276

• Decision Date: 04 October 1934
• Docket Number: Civil 3276
• Citation: 36 P.2d 168,44 Ariz. 174
• Parties: PICKWICK STAGES CORPORATION, a Corporation, and H. A. LORANG, Appellants, v. H. J. MESSINGER, Appellee
• Court: Arizona Supreme Court

36 P.2d 168

44 Ariz. 174

PICKWICK STAGES CORPORATION, a Corporation, and H. A. LORANG, Appellants, v. H. J. MESSINGER, Appellee

Civil No. 3276

Supreme Court of Arizona

October 4, 1934

APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Reversed and remanded for new trial.

Messrs Armstrong, Kramer, Morrison & Roche, for Appellants.

Mr. H H. Baker and Mr. P. T. Robertson, for Appellee.

OPINION

McALISTER, J.

This is an appeal by the Pickwick Stages Corporation and H. A Lorang from a judgment in favor of H. J. Messinger, plaintiff below, for personal injuries resulting from an accident which occurred while he was a passenger on one of the stages of the defendant, Pickwick Stages Corporation, and is alleged to have arisen out of the negligent operation thereof. For convenience the parties will be referred to as plaintiff and defendants.

The Pickwick Stages Corporation was engaged in the business of transporting passengers in motor vehicles through the states of Arizona and California, and, particularly, through the city of Phoenix, Arizona, and the town of Holtville, California. The record discloses that on December 4, 1928, the plaintiff purchased for $6.10 a ticket from the defendant, Pickwick Stages Corporation, at Phoenix, Arizona, entitling him to passage in one of its motor vehicles from that city to Holtville. The stage he boarded was being driven by the defendant, H. A. Lorang, and when it reached a point about four miles east of Mohawk, Yuma county, Arizona, on the state highway, it ran into and collided with the rear end of a car going in the same direction and being driven by one Morris L. E. Williams. The collision was so severe that the bottom of the bus, the iron part of it, came down on the center of the road, its front wheels were knocked off, a great gutter for about thirty feet was plowed in the road, and the car driven by Williams was overturned twice and badly crushed.

The plaintiff charged negligence by the defendants in the following language:

"The defendant did then and there negligently, carelessly, and wantonly operate, drive and propel the said motor vehicle at, into, and against the automobile then being driven by Morris L. K. Williams; and did then and there drive said vehicle at a careless and imprudent speed greater than was reasonably proper and safe, and without having due regard to the traffic, surface and width of the highway, and any other conditions then and there existing, and did so drive said vehicle upon said highway at such a speed, to-wit, at 50 miles an hour, as to endanger the life and limb of plaintiff, and did then and there drive said vehicle upon such highway at said time and place at a speed of 50 miles an hour, and paragraph 1587 of the code of 1928 of the laws of the state of Arizona declares; that at such place any person driving a vehicle on a highway shall drive at a careful and prudent speed not greater than in reasonable,... and under no circumstances at a speed greater than 35 miles an hour."

In the succeeding paragraph the complaint alleges that because of the "said" negligent, careless and wanton operation of the motor vehicle and the driving of it into and against the automobile driven by Williams, a collision occurred whereby he was badly injured. Then follows a detailed statement as to the nature and extent of his injuries which, it is averred, caused him "great pain and suffering for several weeks" after the accident, and up to filing of the complaint in January, 1930, subjected him following the performance of any ordinary, normal labor to pain so great that it pr e vented him from further physical labor for a long space of time afterwards. The plaintiff secured a judgment for $3,000 based upon a verdict for that sum and defendants have brought it here for review.

Some six errors are assigned and, according to the defendants, they involve an equal number of propositions of law. The first and main assignment is that the court erred in giving the following instruction:

"In the case of a carrier of passengers, gentlemen, I instruct you that the carrier must exercise the highest degree of care practicable under the circumstances to protect its passengers, and when a passenger in injured by a collision with any agency, the law raises a presumption of negligence on the part of the operator of the carrier -- of the car of the carrier that requires the introduction of evidence on the part of the defendant to rebut, so in this case, if you find, from a preponderance of the evidence, that the plaintiff was a passenger on the defendant's stage, and that while he was such passenger an accident occurred by reason of the collision between the stage and some other object, and the plaintiff was injured, you must find on that question of negligence in favor of the plaintiff."

It is the contention of the defendants that the allegations of the complaint set forth only specific acts of negligence and, hence, that the doctrine of res ipsa loquitur has no application; having alleged certain specific acts on the part of the defendants as the cause of his injuries he must rely upon proof of those and is not permitted to bring to his aid a presumption of negligence or the rule, "res ipsa loquitur," a doctrine, it is said, applicable only when a general allegation of negligence has been pleaded, and not otherwise.

It will be observed from the excerpt just quoted that the complaint attributes to the defendants both general and specific negligence, but it does this in the same paragraph or count and the respective allegations are so connected that they amount to an averment of specific negligence. While the first allegation, namely, that the "defendants did then and there carelessly, negligently and wantonly operate, drive and propel the said motor vehicle at, into and against his automobile then being driven by Morris L. K. Williams," is general, the second and third, in reality one, are specific. They allege in substance that the operator of the bus drove it at a speed greater than was reasonably proper and safe in view of the conditions existing and confronting him at the time, namely, fifty miles an hour, a speed that endangered the life and limb of plaintiff and violated the provisions of section 1587, Revised Code of 1928, limiting the speed of motor cars on the highway to thirty-five miles per hour. The effect of this is to limit the first allegation in such a way that the three, fairly interpreted, amount to an averment that plaintiff's injuries were caused by Lorang's driving the stage against the car driven by Williams at a rate of speed that was, in view of the situation confronting him at the time, excessive, fifty miles per hour, and at all events in violation of the statute limiting the speed of cars on the highway to thirty-five miles per hour. These allegations, therefore, must be treated as specific only, Schaff v. Sanders, (Tex. Civ. App.) 257 S.W. 670, hence, the plaintiff's right to invoke the rule, res ipsa loquitur, depends upon two considerations: First, whether the averments are such as to render this doctrine applicable, and, second, whether by virtue of such an allegation, he has deprived himself of the right to claim the benefit of it.

The maxim res ipsa loquitur is merely a rule of evidence in negligence cases and literally interpreted means "The thing itself speaks." In other words, the fact that an accident has occurred may form a basis upon which a prima facie case of negligence may be predicated so that, instead of being required to prove the acts of negligence leading up to the accident, the plaintiff may rely upon this rule as proof of the acts necessary to establish a prima facie case. Having shown an accident within the scope of the rule, the presumption of negligence arises from the fact of occurrence alone. Burghardt v. Detroit United Ry., 206 Mich. 545, 173 N.W. 360, 5 A.L.R. 1333; Lyon v. Chicago M. & St. P. Ry. Co., 50 Mont. 532, 148 P. 386. "The term," states the court in Boyd v. Portland Electric Co., 40 Or. 126, 66 P. 576, 577, 57 L.R.A. 619, "implies, that the happening of an accident under certain circumstances is of itself prima facie evidence of negligence," because in the light of experience an accident of the nature of those to which the rule applies does not normally occur if due care is exercised. Burghardt v. Detroit United Ry., supra.

Ordinarily, the mere fact that an accident has occurred does not per se raise a presumption of negligence though the circumstances may such as to imply it in the absence of a showing to the contrary. Where, for instance, the evidence shows absolute control by the defendant of the instrumentality causing the injury and the accident is such as in the ordinary course of events does not happen if those who have control use proper care, it is reasonable to presume, in the absence of an explanation by the defendant, that the accident occurred because of a lack of proper care. Francisco v. Circle Tours Sightseeing Co., 125 Or. 80, 265 P. 801. A plaintiff, after he has shown the relation of passenger and railroad carrier between himself and the defendant, a wreck and his injury resulting therefrom, may rest and rely upon the doctrine of res ipsa loquitur to prove prima facie that the accident happened through the negligence of the defendant. Southern Pacific Co. v. Hogan, 13 Ariz. 34, 108 P. 240 29 L.R.A. (N.S.) 813. When this has been done, the defendant who desires to remove the inference of guilt f ol lowing therefrom may explain it, and, if he is able to do so, cause the weight of the evidence upon the question of negligence to shift to him from the plaintiff, whereupon the latter may rebut the explanation by evidence. The burden of proving...