Powell v. St. Joseph Ry., L., H. & P. Co.
| Decision Date | 17 April 1935 |
| Docket Number | No. 32860.,32860. |
| Citation | 81 S.W.2d 957 |
| Court | Missouri Supreme Court |
| Parties | A.M. POWELL v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant. |
Appeal from Buchanan Circuit Court. — Hon. L.A. Vories, Judge.
REVERSED AND REMANDED (with directions).
Mayer, Conkling & Sprague for appellant.
Under the evidence here, the cause of the collision between the bus and the Ford automobile was clearly shown and is not left in any doubt. Under such circumstances, plaintiff was not entitled to submit her case to the jury under the res ipsa loquitur theory. Plaintiff, by her own testimony, shows with absolute certainty the specific cause of the collision, and all the evidence in the case excludes any other possible cause. Under these circumstances, Instruction D, limiting plaintiff's recovery to the cause shown by plaintiff and by all the evidence with absolute certainty to be the only cause of the collision, was properly given. Glasco Elec. Co. v. Union Elec. Co., 332 Mo. 1085; Sanders v. Carthage, 330 Mo. 850; Conduitt v. Gas & Elec. Co., 326 Mo. 143; Heidt v. People's Motor Bus Co., 219 Mo. App. 688; McAnany v. Shipley, 189 Mo. App. 400; Cook v. Union Elec. Co., 232 S.W. 249.
Shultz & Owen for respondent.
The defendant herein, St. Joseph Railway, Light, Heat & Power Company, operates passenger motorbus lines in the city of St. Joseph in connection with its transportation system in that city. Plaintiff was injured while a passenger on one of defendant's busses when the bus and a Ford automobile, driven by one Wallace, collided at or in the intersection of Twelfth and Francis streets. Plaintiff brought this action for damages for injuries sustained. Upon a trial in the Circuit Court of Buchanan County the verdict of the jury was for defendant, but the trial court sustained plaintiff's motion and granted a new trial on the ground, specified of record, "that the court erred in giving Instruction D on behalf of defendant;" whereupon defendant appealed from the order granting a new trial and the amount of damages claimed and sued for being in excess of $7500 we have jurisdiction of the appeal.
[1] Plaintiff's petition alleges that on the 7th day of October, 1930, she was a passenger upon defendant's bus, that there was a collision between the bus and another motor vehicle at the street intersection mentioned, supra, that she was injured and that the collision was caused by the "carelessness and negligence of the defendant, its servant and agent" and "the failure to exercise the highest degree of care," in the operation of the bus whereby "said bus was negligently caused and permitted" to collide with the other motor vehicle at the time and place stated. It is apparent that plaintiff invokes the res ipsa loquitur rule and relying thereon pleads or charges general negligence only. [Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932.] No question is made that the petition does not sufficiently state a cause of action and clearly the res ipsa rule applies to the situation therein stated. [Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W. (2d) 654; Stauffer v. Metropolitan Street Ry. Co., 243 Mo. 305, 147 S.W. 1032; Story v. People's Motorbus Co., 327 Mo. 719, 37 S.W. (2d) 898; Porter v. St. Joseph Railway, Light, Heat & Power Co., 311 Mo. 66, 277 S.W. 913; Loftus v. Metropolitan Street Ry. Co., 220 Mo. 470, 119 S.W. 942; Olsen v. Citizens' Ry. Co., 152 Mo. 426, 54 S.W. 470; Yates v. United Rys. Co. (Mo. App.), 222 S.W. 1034; Gibson v. Wells (Mo. App.), 258 S.W. 1; and Cecil v. Wells, 214 Mo. App. 193, 259 S.W. 844.] [2] Defendant says, however, that plaintiff's evidence, and all the evidence in the case, reviewed in the light most favorable to plaintiff clearly shows a precise, specific and definite negligent act of defendant's employee, the driver or operator of the bus, as the cause of the collision and therefore having, by her evidence, clearly shown the specific negligent act which caused the collision she was not entitled to rely upon presumptive negligence and have the case submitted to the jury under the res ipsa loquitur rule, but the jury should have been limited and confined to a consideration and determination of the specific negligence thus shown by plaintiff's evidence and that the trial court properly gave defendant's Instruction D so confining the issue. As stated the trial court sustained plaintiff's motion and granted a new trial on the ground that it erred in giving that instruction at defendant's request. The propriety of the instruction is the question here and necessitates a statement of the evidence most favorable to plaintiff.
Francis Street runs east and west and is 26.6 feet wide from curb to curb. Francis Street is intersected by Twelfth Street which runs north and south and is 35.6 feet wide, from curb to curb, at the intersection. It is 260.5 feet from the south curb of Francis Street to the north curb of Felix Street, the first east and west street south of Francis Street, which street also crosses or intersects Twelfth Street at that point. There is an alley midway of the block between Francis and Felix streets. The bus on which plaintiff was a passenger was traveling east on Francis Street. The Ford automobile which collided with the bus was traveling north on Twelfth Street. It was a 1922 model Ford touring car driven by a young man named Wallace. Two other young men (Gatewood and Townsend) were seated with Wallace in the front seat. The evidence tends to show that the young men were intoxicated. Wallace was killed in the collision and his widow brought an action for damages against the defendant herein. The jury, in that case, found for the defendant but, as in this case, the trial court sustained plaintiff's motion and granted a new trial from which order the defendant appealed. We reversed the order granting a new trial, directed it be set aside, the verdict reinstated and judgment entered thereon for defendant. [See Wallace v. St. Joseph Ry., Light, Heat & Power Co., 336 Mo. 282, 77 S.W. (2d) 1011.] We shall presently have occasion to refer to certain comments or observations made therein upon the facts.
When, proceeding east on Francis Street through the intersection, the front end of the bus was out of the intersection and six feet east of the east curb line of Twelfth Street the Ford automobile traveling north on Twelfth Street crashed into the right side of the bus "back of the front door." All the evidence in the case, except the testimony of the plaintiff, was that when the bus entered the intersection the Ford automobile was yet at, south of or about Felix Street, the first east and west street south of Francis Street, mentioned, supra, and therefore at the time a block or more away. Plaintiff however testified that at the time the bus entered the intersection the Ford was a half block south of the intersection, or at about the alley midway of the block between Francis and Felix streets. With these preliminary glimpses we now refer to plaintiff's positive and direct testimony concerning the occurrence and the surrounding circumstances. Plaintiff was the only eyewitness to testify in her behalf. She stated that she was seated in the front seat on the right hand side of the bus as it traveled east; that as the bus approached the intersection it "slowed up" and then as it entered the intersection "speeded up very fast;" that as the bus entered the intersection she saw the Ford automobile and it was then "at the alley a half block south of Francis Street" and "I noticed it was coming down very fast" (north on Twelfth Street); "the bus was going very fast;" "I didn't think we were in any danger" and "had no thought of a collision;" ...
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