Rothweiler v. St. Louis Public Service Co.
| Decision Date | 15 November 1949 |
| Docket Number | 27701,27702 |
| Citation | 224 S.W.2d 569 |
| Parties | ROTHWEILER v. ST. LOUIS PUBLIC SERVICE CO. et al |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Salkey & Jones, and Carroll J. Donohue, both of St. Louis, for appellant St. Louis Public Service Co.
Walther Hecker, Walther & Barnard, and Harold F. Hecker, all of St Louis, for appellant William Edward Cordia.
Evans & Dixon, and John F. Evans, both of St. Louis, for respondent.
BENNICK PER CURIAM
This is an action for damages for personal injuries sustained by plaintiff, Clara Rothweiler, in a collision between a bus of defendant St. Louis Public Service Company in which she was riding as a passenger and an automobile owned and operated by defendant William Edward Cordia.
The accident occurred on July 21, 1947, at the intersection of Shenandoah Avenue and Eleventh Street, in the City of St. Louis.
Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against both defendants, for the sum of $ 6,250. Judgment was entered in accordance with the verdict; and following unavailing motions for a new trial, defendants gave separate notices of appeal, and by subsequent steps have caused the case to be transferred to this court for our review. Although the copy of each notice of appeal was given a separate docket number as it was received in the office of the clerk, there is still but the single case in this court as there was in the court below. Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243; Waterman v. Waterman, Mo.App., 210 S.W.2d 723; Lincoln Trust Co. v. Mersman, Mo.App., 187 S.W.2d 50.
The case was pleaded and submitted against defendant St. Louis Public Service Company upon the theory of res ipsa loquitur. Plaintiff was of course compelled to rely upon specific negligence as to defendant Cordia, the alternative charge being that he operated his automobile at an excessive, dangerous, and unreasonable rate of speed under the circumstances then and there existing, or that he failed and omitted to exercise the highest degree of care to keep and maintain a proper lookout for other vehicles approaching or entering the intersection, when by doing so he could have discovered the bus upon which plaintiff was riding in time thereafter to have stopped, swerved, or slackened the speed of his automobile, and thereby have avoided the collision.
Defendant St. Louis Public Service Company assigns error to the court's refusal of its motion for a directed verdict. Defendant Cordia, on the other hand, takes the position that there was a case for the jury against both defendants. However he complains of certain of the instructions, as also does defendant St. Louis Public Service Company; and both defendants insist that the verdict was excessive.
At the outset plaintiff challenges defendant St. Louis Public Service Company's right to be heard upon the question of the refusal of its motion for a directed verdict upon the theory that the motion itself neither specified the grounds for a ruling thereon, nor does the record indicate that the general motion was supplemented by oral argument of counsel so as to have advised the trial court of the specific grounds relied upon.
It is true that the motion went no further than to suggest that under the law and the evidence plaintiff was not entitled to recover against defendant St. Louis Public Service Company, and did not present the specific ground now urged -- that plaintiff's evidence had conclusively established the fact that her injury was solely and exclusively caused by the negligence of defendant Cordia, over whom defendant St. Louis Public Service Company had no control. But even if the general language of the motion is to be regarded as in and of itself insufficient to satisfy the requirements of the new code, Laws Mo.1943, p. 389, sec. 122, Mo.R.S.A. § 847.122 it does not follow that this court is precluded from inquiring whether the motion was correctly ruled. The record discloses that both at the close of plaintiff's case and again at the close of the whole case the motion was 'considered' before being overruled. That the court was fully apprised of such specific issue in the case is shown by the fact that it gave an instruction submitting the defense that defendant Cordia's negligence was the sole cause of the collision, and that the same was not due to any negligence on the part of defendant St. Louis Public Service Company. Furthermore, in the latter defendant's motion for a new trial, the question was once again directly brought to the court's attention. In this state of the record both reason and precedent would indicate that the question of whether plaintiff made a submissible case against defendant St. Louis Public Service Company is properly here for our review. Ashton v. Buchholz, Mo.Sup., 221 S.W.2d 496; Oganaso v. Mellow, 356 Mo. 228, 2015 S.W.2d 365; Rosebrough v. Montgomery Ward & Co., Mo.App., 215 S.W.2d 295.
There is no doubt that the doctrine of res ipsa loquitur applies to a situation where a passenger is injured as the result of a collision between two vehicles belonging to or under the control of the one carrier. However there is a difference of opinion in other jurisdictions as to whether a passenger who is injured in a collision between the vehicle of the carrier in which he is riding and another vehicle not under the carrier's control may have the benefit of the doctrine. 10 Am.Jur., Carriers, secs. 1634, 1635; 13 C.J.S., Carriers, § 764f(2). Our own state -- very properly, we think -- adheres to the rule that in such a case the doctrine applies to the carrier defendant, even though as to the other defendant outside the carrier defendant's control the plaintiff must of course rely upon proof of specific negligence. Hill v. St. Louis Public Service Co., Mo.Sup., 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 only qualification is that the plaintiff, in making out his case of specific negligence against the other defendant, must not go so far as to show, not only of what such other defendant's negligence consisted, but that it was in fact the sole cause of his injury. If his evidence discloses that he definitely knows the real or precise cause of the accident, there is no basis for invoking the doctrine of res ipsa loquitur, and if he shows that the other defendant's negligence was the sole cause of the accident, he could have no case against the carrier defendant on any theory of liability. Hill v. St. Louis Public Service Co., supra.
The difficulty in this case springs from the fact that plaintiff in order to prove the specific negligence charged against defendant Cordia, elected to introduce the bus driver as her own witness. As might have been expected, the bus driver's testimony was somewhat calculated to exculpate himself while putting the blame for the collision upon defendant Cordia; and it is because of this fact that defendant St. Louis Public Service Company now contends that plaintiff's evidence showed defendant Cordia's negligence to have been the sole cause of her injury so as to have left no room for an inference of its own negligence under the doctrine of res ipsa loquitur. It follows, therefore, that the question for our consideration is whether plaintiff's proof did in fact make a sole cause case against defendant Cordia, or whether, on the contrary, it pointed to his negligence as a mere contributing factor, concurring with the negligence of defendant St. Louis Public Service Company to bring about the ultimate result. Moreover the question must be decided upon the strength of plaintiff's own evidence unaided by the evidence brought forward by defendant Cordia in his own defense, since defendant St. Louis Public Service Company stood on its motion for a directed verdict at the close of plaintiff's case, and thereby did nothing to waive its right to challenge the action of the court at that stage of the proceeding. Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914.
The two witnesses testifying for plaintiff on the issue of liability were plaintiff herself, and one Markley, the driver of the bus upon which she was a passenger.
The bus was traveling westwardly on Shenandoah Avenue, which crosses Eleventh Street on an upgrade which begins a block east of Eleventh Street and was described by Markley as 'one of the steepest grades I believe any of our buses have to go up'. On the other hand, Eleventh Street is level for at least one entire block to the north of Shenandoah Avenue. The traveled portion of each street is about 35 or 36 feet in width. Defendant Cordia was southbound on Eleventh Street, and his automobile collided with the north side of the bus at the rear door, or at a point approximately 22 feet back from the front of the bus and 11 feet forward from the rear.
Plaintiff testified that she was sitting in a seat directly back of the exit door, or on the side of the bus where the collision occurred. In her estimation the bus had been traveling up the grade at a speed of 8 or 10 miles an hour, and continued on across Eleventh Street at approximately the same speed.
As the bus was crossing Eleventh Street she turned her head for some reason and saw defendant Cordia's automobile approaching very rapidly on the west side of Eleventh Street, and then only 35 to 40 feet away. She subsequently estimated the speed of the automobile as having been from 35 to 50 miles an hour. She observed the automobile swerve slightly to the east, and realizing that the two vehicles were about to collide, she attempted to turn her body so as to avoid any flying glass. Before she had time to turn completely around, the...
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