Rothweiler v. St. Louis Public Service Co.
| Decision Date | 13 November 1950 |
| Docket Number | No. 41872,41872 |
| Citation | 234 S.W.2d 552,361 Mo. 259 |
| Parties | ROTHWEILER v. ST. LOUIS PUBLIC SERVICE CO. et al. |
| Court | Missouri Supreme Court |
Walther, Hecker, Walther & Barnard, by Harold F. Hecker, St. Louis, for appellant William Edward Cordia.
Salkey & Jones and Carroll J. Donohue, all of St. Louis, for (defendant) appellant, St. Louis Public Service Company.
Evans & Dixon, William W. Evans and John F. Evans, all of St. Louis, for respondent.
Clara Rothweiler recovered judgment for $6,250 against St. Louis Public Service Company (sometimes hereinafter referred to as the carrier) and William Edward Cordia for injuries sustained by her in a collision between a motor bus of the former on which she was a passenger and Cordia's automobile. The St. Louis Court of Appeals affirmed the judgment, see 224 S.W.2d 569, and on application of both defendants, this court ordered the cause transferred here. The primary purpose of the court in making such order (although not indicated of record) was to review the holding by which approval was given to instruction No. 6, which was claimed to shift the burden of proof. The supplemental briefs on the present submission are directed to particular objections urged against the opinion of the Court of Appeals. We are in accord with and affirm that court's conclusions except as to the propriety of the instruction mentioned. Reference is made to that opinion for a more detailed discussion of the facts and authorities.
The case was pleaded and submitted as to the carrier under the res ipsa loquitur theory, and as to Cordia upon specific negligence--permissible practice in collision cases (where warranted by the pleadings and the evidence), even though one of the vehicles be not under the control of the carrier. Hill v. St. Louis Public Service Co., 359 Mo. 220, 221 S.W.2d 130; Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654; Gibson v. Wells, Mo.App., 258 S.W. 1; Cecil v. Wells, 214 Mo.App. 193, 259 S.W. 844.
The collision occurred on the afternoon of July 21, 1947, at the intersection of Eleventh and Shenandoah, in the City of St. Louis. Eleventh runs north and south; Shenandoah, east and west. Both streets are approximately the same width--35 or 36 feet from curb to curb. The bus, proceeding westwardly on Shenandoah, was crossing the intersection. Cordia, southbound on Eleventh, drove his Oldsmobile into the right or north side of the bus at the rear door, or at a point 22 feet back from the front end and 11 feet forward from the rear.
The carrier does not contend that plaintiff initially failed to make a submissible res ipsa case against it, but rather that the inference empodied in that doctrine became inapplicable in the light of the particularty with which her evidence developed the facts and circumstance surrounding the casualty. Her personal testimony in that connection went on further than to show that she was seated toward the rear and on the right or north side of the bus; that as it started across Eleventh Street she turned her head, and saw Cordia's automobile approaching the intersection on the west side of Eleventh Street, 35 or 40 feet away, and 'coming very fast.' It swerved, and she, knowing it was going to hit the bus, turned around in her seat to avoid any flying glass. The collision occurred, and she was thrown 'across the aisle diagonally, up against the post.'
Res ipsa loquitur did not apply in favor of plaintiff against Cordia, the individual defendant, and so in order to hold him it became incumbent upon her to prove one or more of her charges of specific negligence against him. She accordingly took the rather bold course of calling the bus driver as a witness in her behalf, and elicited from him, in some detail, the facts touching the scene of the accident and matters of distance, position, speed, movement of the vehicles, etc. It is upon the basis of Markley's testimony that the carrier contends Cordia's negligence was shown to be the sole cause of the collision. The following is a summary of his testimony in so far as pertinent to that issue: Markley was driving with the north side of the bus about 7 feet out or away from the north curb line of Shenandoah, and he continued in this position as he started across Eleventh. He did not see Cordia's car (an Oldsmobile) until the front end of the bus was in the middle of the intersection, where he 'could see down the center of the street up Eleventh Street.' At that time the automobile was approximately 90 feet away, and was more toward the east curb of Eleventh than the west--'he was somewhat over the center line, in other words.' Markley estimated the speed of the automobile at 40 miles an hour. After he saw it coming, he said he paid more attention to his driving than anything; he tried to get out of its way and consequently didn't see the automobile again until the collision. The impact was sufficient to cause the automobile to bounce back about 10 feet from the bus. At the time of collision, the rear door of the bus was in the center of the intersection, and the front end of the automobile was 4 or 4 feet out into Shenandoah. On cross-examination by the carrier's counsel, he testified that as he approached Eleventh Street he was going about 8 miles an hour, which he reduced to 5 miles as he started across the intersection. He identified a photograph of the bus, and also stated that when he first saw the automobile the front of the bus was about the center of Eleventh Street, and the automobile was then 90 feet away. He did not see the automobile swerve. On cross-examination by Cordia's counsel, he reiterated some of his former statements, and said that he blew his horn before entering the intersection; that after seeing Cordia's car he tried to get across the intersection before Cordia got there; that the motor in the bus was a diesel motor that was one of the oldest types that the company had, and on that particular diesel it had a slow pickup going up the hill; at the northeast corner of the intersection was a brick house which was flush with the sidewalk line; between the sidewalk and the curb was a distance of 8 or 9 feet on both streets; from the building line one could see north on Eleventh Street for a distance of 75 feet if there were no cars parked along the curb; that Eleventh Street is level to the north of Shenandoah, and the closer to the curb line, the greater distance one could see up Eleventh Street. The witness was reluctant to admit that from the curb line one could see a distance of one block north on Eleventh; that when he got to the curb he looked to see if there...
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