Quadlander v. K.C. Pub. Serv. Co.

• Decision Date: 07 November 1949
• Docket Number: No. 21233.,21233.
• Parties: MARY H. QUADLANDER, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

224 S.W.2d 396

MARY H. QUADLANDER, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, APPELLANT.

No. 21233.

Kansas City Court of Appeals. Missouri.

Opinion delivered November 7, 1949.

Appeal from Circuit Court of Jackson County. — Hon. John R. James, Judge.

AFFIRMED.

Charles L. Carr, E.E. Thompson and Sam Mandell for appellant.

Plaintiff's witnesses testified that the specific causes of the collision in which she was injured were the high speed and skidding of the Armour-Paseo bus into the standing Linwood-Benton bus in which plaintiff was a passenger, and so plaintiff was not entitled to submission under the res ipsa loquitur doctrine had by her instruction No. 1. Hill v. St. Louis Public Service Co. (Mo. Sup.), 221 S.W. 2d 130, 133; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W. 2d 21, 25; Adams v. Le Bow, 236 Mo. App. 899, 160 S.W. 2d 826, 831; Hughes v. East St. Louis City Lines (St. L. App.), 149 S.W. 2d 440, 441. The giving of plaintiff's Instruction No. 4 constituted prejudicial error. Hamre v. Conger (Mo. Sup.), 209 S.W. 2d 242, 247. Defendant's Exhibit C was erroneously refused admission in evidence by the trial court. Waterous v. Columbia Nat'l Life Ins. Co., 353 Mo. 1093, 186 S.W. 2d 456, 461; LeBourgeoise v. Blank, 8 Mo. App. 434. There is no medical testimony in the record on which to base a finding that plaintiff's hearing was impaired as the result of any trauma, and the trial court erred in refusing defendant's Instruction F, withdrawing the alleged impairment of plaintiff's hearing as an element of recovery. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W. 2d 644, l.c. 646; Kimmie v. Terminal R.R. Assn. of St. Louis, 334 Mo. 596, 66 S.W. 2d 561, 564; Hunt v. Armour & Co., 345 Mo. 677, 136 S.W. 2d 312, 318; Waterous v. Columbia Nat'l Life Ins. Co., 353 Mo. 1093, 186 S.W. 2d 456, 459. Plaintiff's verdict of $5,000 is excessive. Harding v. Kansas City Public Service Co., 188 S.W. 2d 60; Page v. Wabash R. Co., 206 S.W. 2d 691; Brooks v. McCray, 145 S.W. 2d 985; Kramer v. Laspe, 94 S.W. 2d 1090.

Harry A. Morris for respondent.

Plaintiff's witnesses did not testify as to the specific causes of the collision between the two buses operated by defendant, and plaintiff was entitled to the submission of her case under the res ipsa loquitur doctrine by her instruction No, 1 because the cause of the collision was left in doubt and was not clearly shown. Polokoff v. Sanell, (Mo. App.) 52 S.W. 2d 443, 447; Story v. People's Motorbus Co., (Mo. App.) 327 Mo. 719, 37 S.W. 2d 898, 900; Hill v. St. Louis Public Service Co., (Mo. Sup.) 221 S.W. 2d 130, 133; Jones v. Kansas City Public Service Co., (Mo. App.) 155 S.W. 2d 775, 778. The giving of plaintiff's instruction No. 4 did not constitute prejudicial error. Hamre v. Conger, (Mo. Sup.) 357 Mo. 497, 209 S.W. 2d 242, 247; State v. Caviness, (Mo. Sup.) 326 Mo. 992, 33 S.W. 2d 940, 943. The trial court did not erroneously refuse admission in evidence of defendant's Exhibit C. New York Life Ins. Co. v. Taylor, 158 F. 2d 328, 329; Gilbert v. Gulf Oil Corporation, 175 F. 2d 705, 710; Gilday v. Smith Bros., Inc., (Mo. App.) 32 S.W. 2d 118, 121. There is medical testimony and other competent, substantial evidence, including defendant's own medical witness, in the record on which to base a finding that plaintiff's hearing was impaired as the result of the trauma, and the trial court did not err in refusing defendant's Instruction F requesting a withdrawal of impairment of plaintiff's hearing as an element of recovery. Partello v. Mo. Pac. Ry. Co., (Mo. Sup.) 217 Mo. 645, 117 S.W. 1138, 1140; Fulton v. Met. St. Ry. Co., (Mo. App.) 125 Mo. App. 247, 104 S.W. 47, 49; Waterous v. Columbian National Life Ins. Co., (Mo. Sup.) 353 Mo. 1093, 186 S.W. 2d 456, 459. Plaintiff's verdict of $5,000.00 is not excessive. Gerran v. Minor, (Mo. App.) 192 S.W. 2d 57, 61; Scheidegger v. Thompson, (Mo. App.) 174 S.W. 2d 216, 222.

BOUR, C.

This is an action for damages for personal injuries. Plaintiff received a judgment for $5000, and defendant has appealed.

The defendant, a public carrier for hire, operates motorbuses over a route along McGee Street Trafficway (hereinafter called McGee), a public street in Kansas City, Missouri. On the morning of October 10, 1946, plaintiff was a passenger in one of defendant's Linwood-Benton buses as it proceeded north on McGee. This bus stopped on McGee at or near the intersection of McGee and 27th Street to discharge other passengers. It was stopped at this point when one of defendant's Armour-Paseo buses, approaching from the south on McGee, collided with the left rear and back end of the Linwood-Benton bus in which plaintiff was seated, and as a result plaintiff was injured. The collision occurred at approximately 8:10 a.m.

The petition alleged general negligence and the cause was submitted on the res ipsa loquitur theory by plaintiff's Instruction 1. Defendant's first contention is that the testimony of plaintiff's witnesses, on direct examination, showed the specific causes of the collision and, therefore, that it was error to permit plaintiff to submit her case on the res ipsa loquitur doctrine. A recent case on this point, which is relied upon by defendant, is Hill v. St. Louis Public Service Co., Mo. Sup. 221 S.W. (2d) 130, 133, where the court said: "In this connection it has been said: `A plaintiff can neither definitely state nor show that his injury was caused in a certain way and then allow the jury to speculate on whether it was caused in some other way.' Sanders v. City of Carthage, 330 Mo. 844, 51 S.W. (2d) 529, 531; Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W. (2d) 825, 830. When * * * the plaintiff pleads general negligence and by the pleading invokes the aid of the res ipsa loquitur doctrine, he does not lose or waive the benefit thereof, and the right to rely thereon in the submission of the case to the jury, by introducing evidence tending to show specifically the cause of the accident if by the evidence the cause is still left and remains in doubt or is not clearly shown, but where the real or precise cause is definitely shown, and is not left in doubt, "there is no occasion or room for the" presumption or inference which the res ipsa rule affords. "The plaintiff is bound by his evidence in a res ipsa case just as he would be in any ordinary negligence action and cannot in effect say to the jury, `I have shown you exactly how the accident occurred but you are, nevertheless, still at liberty to speculate and presume it may have happened some other way.'" Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W. (2d) 21, 25, and cases there collected and cited."

The defendant argues that the plaintiff "deliberately" produced witnesses, "who in response to questions put by her counsel, on direct examination, testified that the specific causes of her injuries were the high speed of the Armour-Paseo bus on a wet street and its skidding into the standing Linwood-Benton bus in which plaintiff was a passenger," and that the causes of plaintiff's injuries were not left in doubt by such testimony. Defendant bases this argument solely upon the testimony of three of plaintiff's witnesses on direct examination; namely, Mrs. Martha Manning and Ed Schuck, who were passengers on the Armour-Paseo bus, and William J. Green, a passenger on the Linwood-Benton bus. The testimony of Mrs. Manning and Mr. Schuck may be summarized as follows: On the morning in question the Armour-Paseo bus was traveling north on McGee. After the bus passed 29th Street, a passenger signaled for a stop at 27th Street and McGee. The bus was then going forty-five miles an hour and did not thereafter decrease its speed as it approached the Linwood-Benton bus standing on McGee at 27th Street. It had been raining and the pavement on McGee was wet. The front end of the Armour-Paseo bus was just about even with the rear end of the Linwood-Benton bus when the operator of the Armour-Paseo bus applied the brakes. When the brakes were applied the rear end of the bus started swinging back and forth and skidded into the Linwood-Benton bus. The bus had skidded once before, some eight blocks from 27th and McGee, on a wet street. William J. Green, the passenger who was sitting in the rear part of the Linwood-Benton bus at the time of the accident, testified that he had a clear view of the Armour-Paseo bus and that it was "coming down, it seemed, at a terrific rate of speed." He qualified this by saying that he just glanced up and saw the bus coming, and that it was a "very momentary" glance. This is all of the testimony of plaintiff's three witnesses, on direct examination, concerning the accident.

Defendant refers to the skidding of the bus as one of the "causes" of the collision. Perhaps the collision would not have occurred if the bus had not skidded, but the skidding was not a cause of the collision in the legal sense. Conceding that the bus skidded, the question remains as to what caused it to skid. No doubt the defendant's reference to the skidding of the bus was for the purpose of pointing out that plaintiff's evidence as to the skidding shows negligence on the part of defendant's driver when taken in connection with other evidence introduced by plaintiff. It is well settled that the mere skidding of a motor car is not of itself evidence of negligence. (Story v. People's Motorbus Co., 327 Mo. 719, 725, 37 S.W. (2d) 898, 900, and cases cited); but skidding may be considered, along with other circumstances and conditions, in determining the question of negligent speed. Bear v. Devore, Mo. App., 176 S.W. (2d) 862, 864. So defendant also points to plaintiff's evidence showing that the Armour-Paseo bus was traveling forty-five miles an hour on a wet street as it proceeded north on McGee and approached the Linwood-Benton bus. Assuming that this evidence shows a specific act of negligence on the part of defendant's driver, the question...