Rodefeld v. St. Louis Public Service Co.
| Decision Date | 10 January 1955 |
| Docket Number | No. 44044,No. 2,44044,2 |
| Citation | 275 S.W.2d 256 |
| Parties | Margaret RODEFELD (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant) Appellant |
| Court | Missouri Supreme Court |
Lloyed E. Boas, St. Louis, for appellant.
Wilbur C. Schwartz and Harry M. James, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for respondent.
Plaintiff brought this action to recover damages for personal injuries sustained on the morning of January 21, 1952, when defendant's bus ran into and knocked down upon her a metal stop sign. She recovered a verdict and judgment in the sum of $14,000, and defendant appealed.
Plaintiff was a pedestrian, standing on the southwest corner of West Florissant and Grand Avenues in St. Louis, intending to cross the street. Defendant's bus was eastbound on West Florissant, and at the time of the accident the operator was attempting to effect a left turn into Grand Avenue. The metal sign post was embedded in the concrete sidewalk, about two feet south of the south curb line of West Florissant and somewhat more than ten and one-half feet west of the west curb line of Grand Avenue. The force of the blow broke the sign off at the base and in the course of its descent plaintiff was violently struck on the head and knocked down, bleeding and unconscious, to the sidewalk. She did not fully regain consciousness until four days thereafter.
Plaintiff's personal knowledge of what occurred was limited to hearing the roar of a bus and catching a glimpse of the sign as it came down toward her head. She remembered nothing which happened thereafter until she found herself in a hospital bed several days after the accident. The case was pleaded and submitted under the doctrine of res ipsa loquitur, based upon the unusual occurrence of the bus leaving the vehicular portion of the highway, coming upon the sidewalk and striking the metal standard.
The bus operator, about five minutes behind schedule, had stopped in the bus zone near the corner for the purpose of discharging and taking on passengers. The right side of the bus was about three or four inches from the curb, and the front of the bus was about nine feet west of the metal standard. The bus was estimated to be thirty or thirty-five feet in length, and the rear end extends a distance of about six feet from the rear wheels. About an hour or so before the occurrence there had been a sudden snowstorm, which left about one and a half inches of snow on the ground. The curb on West Florissant is about five inches high, except at a sewer, where the street dips slightly. At the deepest point of this dip the curb is ten or eleven inches high. The sewer depression is about four feet in length, and the front of the bus had been stopped about three feet west of the west end of the depression. The grade toward the east is down. The operator was thoroughly familiar with the physical conditions at the intersection, having driven on that route 'thousands' of times.
After he had discharged and loaded passengers, the operator started the bus forward, taking his foot off the brake and letting the bus roll forward, turning the wheels slightly toward the left for the purpose of making a left turn. After the bus had gone a distance of 4 or 5 feet east, the right rear wheel of the bus slid sideways against the curb. Both the operator and a police officer standing in the bus felt the bus hit the curb. The operator continued to let the bus roll forward and to turn the wheels to the left. After the bus had gone an estimated bus length farther, or an estimated 5 seconds later, a passenger seated at the rear of the bus screamed that a woman was lying on the sidewalk. The operator then completed his left turn and stopped at the east curb of Grand Avenue. It appears that in the course of the operator's maneuvering after the wheel had struck the curb, the right rear end of the bus ran over the sidewalk, and then struck and knocked down the metal standard. The only visible damage to the bus was at its right rear corner about 3 feet from the ground level. The operator felt the bus scrape the sign and was reasonably certain that he had struck it. His speed at the time was about 3 miles an hour. After stopping, the operator and the police officer went across the street and found plaintiff lying on the sidewalk unconscious, with blood on her head. The officer also noted that the standard had been broken off at its base and was lying on the sidewalk between plaintiff and the curb. He caused plaintiff to be conveyed to the City Hospital, accompaning her to that institution. Later on we will set ont the extent of plaintiff's injuries.
Defendant's first contention is that plaintiff did not make a submissible case. Its sole point on this issue is that plaintiff's evidence 'conclusively' proved that the accident was caused by a sudden and unexpected skidding of the bus, from which fact alone no inference of negligence could have been drawn, and therefore plaintiff destroyed the res ipsa case she would otherwise have had.
The rule that 'mere' skidding is not of itself negligence, nor of itself will permit an inference of negligence, applies only where the evidence proves that the skidding is the 'sole factual cause' of the occurrence. Dodson v. Maddox, 359 Mo. 742, 223 S.W.2d 434; Story v. Peoples Motor Bus Co., 327 Mo. 719, 37 S.W.2d 898. In the instant case not only was skidding not the 'sole factual cause,' but it was not any cause whatever, in the legal sense, of plaintiff's injuries. A brief review of the evidence will make this conclusion perfectly apparent. Defendant's motorbus, proceeding eastwardly on West Florissant, came to a stop at the south curb near the intersection with Grand Avenue. According to the bus operator, the front end of the bus was then about 3 feet west of a concrete slab on the sidewalk over a sever opening. He testified that the slab was about 4 feet in length. The evidence showed that the 'stop' sign post in question was about 2 feet east of the slab, and that it was at least 10 1/2 feet from that point to the curb line of Grand Avenue. It thus appears that the front of the bus was about 6 feet west of the 'stop' sign post when the bus stopped to discharge and take on passengers. The right side of the bus was only about 3 or 4 inches from the curb. West of the sewer depression the curb was 5 inches in height, and at the sewer itself the curb was 10 or 11 inches high. The bus was one of the newest types, 30 to 35 feet in length. The bus then started forward to the east, the operator taking his foot off the brake, letting the bus roll because the grade was down, although he was aware that under the conditions existing there was a likelihood of skidding because of the down grade. It was his intention to make a left turn into Grand Avenue. When the bus was moved forward about 4 or 5 feet the rear wheel of the bus slid or skidded sideways against the curb. The operator continued to drive the bus forward and to turn the front slightly to the left, at about 3 miles an hour.
It is evident from the foregoing facts that the bus did not skid into the sign post, and that the skidding or sliding against the curb was not the factual cause of the accident. It is also evident that the operator contributed to the skidding. The evidence showed that the rear end of the bus, that is, the right rear corner (which was what struck the metal pole) is about 6 feet to the rear of the rear wheel. Hence when the bus was stopped, the rear end was either 39 of 44 feet west of the stop sign, depending upon the length of the bus. When the bus slid against the curb, after it had moved forward about 4 or 5 feet, the rear end was then still about 35 to 40 feet west of the sign. The bus driver felt the bus strike the curb, but nevertheless continued to let the bus roll forward and to the left. He did not lose control of the bus. He could have stopped it or proceeded straight ahead instead of turning his vehicle in an endeavor to make a left turn. Certainly he should not have let the bus 'roll,' with his foot off the brake while attempting to swing the bus to the left. He should have known that unless the rear of the bus was sufficiently far away from the curb when he made the turn it would necessarily go beyond the curb line and strike whatever was in its path. He knew of the existence of the sign and knew of the attendant dangers. Yet he continued forward and to the left with his foot off the brake. To say that the accident was caused by skidding into the curb some 35 or more feet from the sign post, is to ignore the evidence and the only reasonable inference to be drawn therefrom
An examination of the cases relied upon by defendant will disclose that in every case in which mere skidding has been held to preclude recovery the skidding was the sole cause of the casualty and the operator of the vehicle not only did absolutely nothing to contribute to the skidding, but did everything within his power to avert the consequences of such skidding. To the extent that skidding is involved in the instant case, it may be noted that there are numerous authorities in which recovery is permitted in spite of (and sometimes because of) skidding where the evidence is not limited to skidding alone as the 'sole factual cause' of the occurrence. Among such cases are: Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Triplett v. Beeler, Mo.Sup., 268 S.W.2d 814; Story v. Peoples Motor Bus Co., supra; Dodson v. Maddox, supra, and Lindsey v. Williams, Mo.Sup., 260 S.W.2d 472. In each...
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