Semler v. Kansas City Public Service Co.

• Decision Date: 09 September 1946
• Docket Number: 39729
• Citation: 196 S.W.2d 197,355 Mo. 388
• Parties: Harry L. Semler v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

196 S.W.2d 197

355 Mo. 388

Harry L. Semler v. Kansas City Public Service Company, a Corporation, Appellant

No. 39729

Supreme Court of Missouri

September 9, 1946

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Charles L. Carr, John T. Harding, David A. Murphy, R. Carter Tucker and John Murphy for appellant.

(1) The court erred in giving the court's instruction numbered 1 for the reason that said Instruction 1 submitted plaintiff's case to the jury under the doctrine of res ipsa loquitur or the rule of general negligence, whereas plaintiff's evidence showed the precise cause of the accident in question and, therefore, plaintiff was not, under the law, entitled to have his case submitted to the jury on such theory. Conduitt v. Trenton Gas and Electric Co., 326 Mo. 133, 31 S.W.2d 21; Berry v. K.C. Pub Serv. Co., 343 Mo. 474, 121 S.W.2d 825; Heidt v People's Motor Bus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840; Tate v. Western Union Tele. Co., 336 Mo. 82, 76 S.W.2d 1080; Powell v. St. Jos. Ry., L.H. and P. Co., 336 Mo. 1016, 81 S.W.2d 957; Lochmoeller v. Kiel, 137 S.W.2d 625; Axon v. K.C. Pub. Serv. Co., 142 S.W.2d 342. (2) The court erred in giving the court's Instruction 2 for the reason that said Instruction 2 submitted plaintiff's case to the jury under the doctrine of res ipsa loquitur or the rule of general negligence, whereas plaintiff's evidence showed the precise cause of the accident in question and, therefore, plaintiff was not, under the law, entitled to have his case submitted to the jury on such theory. See same authorities as cited under Point (1). (3) The trial court erred in not sustaining defendant's motion for new trial for the reason that plaintiff made no submissible case for the jury under the doctrine of res ipsa loquitur or the general negligence rule, under which the court submitted plaintiff's case to the jury in the court's instructions 1 and 2 because plaintiff's evidence showed the precise cause of the accident in question and in so doing thereby destroyed any prima facie case under the doctrine of res ipsa loquitur or general negligence. See same authorities as cited under Point (1). (4) The judgment of the trial court in the amount of $ 10,000, entered upon the verdict of the jury by the court after remittitur by the plaintiff, is grossly excessive because (a) there is no evidence in the record to support a judgment in such amount; (b) there was no evidence in the record of permanent injury and therefore the amount of said judgment is wholly out of proportion to the injury and damage shown by the evidence. Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S.W.2d 536; Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603; Mrazek v. Term. Railway Assn. of St. L., 341 Mo. 1054, 111 S.W.2d 26; Kramer v. Laspe, 94 S.W.2d 1090; Ruppel v. Clark, 230 Mo.App. 699, 72 S.W.2d 833. (5) The trial court erred in not granting defendant a new trial because the verdict of the jury was excessive, and the judgment of the court in the amount of $ 10,000 entered thereon, after the remittitur by the plaintiff, is excessive because (a) the evidence adduced by plaintiff wholly fails to support the judgment in the amount rendered; (b) the amount of the judgment is under all the evidence so entirely out of proportion to the injury and damage shown by the evidence as to be grossly excessive. See same authorities as cited under Point (4).

Ben W. Swofford and Robert L. Jackson for respondent.

(1) Since the relationship of carrier and passenger admittedly existed between appellant and respondent and there was competent evidence that the streetcar involved stopped with a sudden, violent, and unusual lurch and jerk, the case was a proper one for the application of the res ipsa loquitur or presumptive negligence doctrine. Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Briscoe v. Metropolitan St. Ry. Co., 222 Mo. 104, 120 S.W. 1162; Story v. People's Motor Bus Co., 327 Mo. 719, 37 S.W.2d 898; Cases cited under Point (2), infra. (2) The presumption of negligence under the res ipsa loquitur doctrine remained throughout the case since the respondent's proof did not show, nor did he undertake to prove, the exact and precise negligent cause of the accident, and, therefore, the court properly gave his instructions 1 and 2. Price v. Metropolitan St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Briscoe v. Metropolitan St. Ry. Co., 222 Mo. 104, 120 S.W. 1162; Porter v. St. Jos. Ry., L.H. & P. Co., 311 Mo. 66, 277 S.W. 913; Fowlkes v. Fleming, 322 Mo. 718, 17 S.W.2d 511; Kinchlow v. K.C., K.V. & W. Ry. Co., 264 S.W. 416; Story v. People's Motor Bus Co. of St. Louis, 327 Mo. 719, 37 S.W.2d 898; Zichler v. St. Louis Pub. Serv. Co., 322 Mo. 902, 59 S.W.2d 654; Berry v. K.C. Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98; Peters v. Mathew-Thomas Freight & Express Co., 51 S.W.2d 139. (3) Appellant's authorities distinguished. Conduitt v. Trenton Gas & Elec. Co., 326 Mo. 133, 31 S.W.2d 21; Berry v. Kansas City Pub. Serv. Co., 343 Mo. 474, 121 S.W.2d 825; Heidt v. People's Motor Bus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840; Tate v. Western Union Tele. Co., 336 Mo. 81, 76 S.W.2d 1080; Powell v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 1016, 81 S.W.2d 957; Lochmoeller v. Kiel, 137 S.W.2d 625; Axon v. Kansas City Pub. Serv. Co., 142 S.W.2d 342. (4) The assignments of error relating to instructions 1 and 2 were not properly preserved in appellant's objections to same before final submission to jury and have, therefore, been waived. Sec. 105, General Code of Civil Procedure, Laws, 1943, p. 386; Sec. 122, General Code of Civil Procedure, Laws, 1943, p. 389; Sec. 3.21, Rules of the Supreme Court of Missouri. (5) The judgment is not excessive. Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S.W.2d 536; Mauck v. Santa Fe, 154 S.W.2d 73; Feltz v. Term. Railway Assn. of St. Louis, 336 Mo. 790, 81 S.W.2d 616; Brunk v. Hamilton Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Weaver v. Mobile & Ohio Railroad Co., 343 Mo. 223, 120 S.W.2d 1105; Gately v. St. Louis-S.F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54; Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Scheidegger v. Thompson, 174 S.W.2d 216; Beall v. Kansas City Ry. Co., 228 S.W. 834; Coffman v. Shell Petroleum Co., 228 Mo.App. 727, 71 S.W.2d 97.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

The Kansas City Public Service Company, a corporation, appeals from a judgment awarding Harry L. Semler $ 10,000 for injuries sustained while on one of defendant's streetcars. Defendant attacks plaintiff's submission under the res ipsa loquitur doctrine and the amount of the judgment.

On the afternoon of May 8, 1943, plaintiff, a postman, finished the delivery of his route and became a fare-paying passenger on one of defendant's eastbound streetcars at 47th street and Paseo. Plaintiff noticed that the first cross seat (approximately 8 or 9 feet back into the body of the car) on the north side was vacant. When he was about a step from this seat the streetcar, which had started, made a sudden and violent stop, throwing plaintiff backward (eastward) and causing his left leg to drop from the body of the car into its vestibule and plaintiff to fall backward to the floor of the vestibule with his left leg locked around a stanchion in the streetcar. Two men lifted him that he might disengage his leg.

Plaintiff's instructions, in conformity with his petition, predicated a verdict against defendant on general negligence; and defendant claims plaintiff waived all rights to go to the jury on a res ipsa loquitur or a general negligence submission because plaintiff's evidence clearly established the precise and exact cause of the accident or injuries complained of. Defendant relies upon Conduitt v. Trenton Gas & El. Co., 326 Mo. 133, 143, 31 S.W. 2d 21, 25; Tate v. Western Union Tel. Co., 336 Mo. 82, 91, 76 S.W. 2d 1080, 1083; Powell v. St. Joseph Ry. Lt. H. & P. Co., 336 Mo. 1016, 1021, 81 S.W. 2d 957, 960; Berry v. Kansas City Pub. Serv. Co., 343 Mo. 474, 483, 121 S.W. 2d 825, 830; Heidt v. People's Motorbus Co. of St. Louis, 219 Mo.App. 683, 686, 284 S.W. 840, 841.

At the time of his fall plaintiff had his back to the motorman and made no attempt to narrate events leading up to the sudden stopping of the streetcar. Defendant's position is based upon testimony of plaintiff's witness Dr. Harry Morton who was seated next to the aisle on the first or second cross seat of the streetcar, facing the front of the car. Forty-seventh street is an east and west street and defendant's double tracks, eastbound and westbound, cross Paseo a short distance north of 47th street, running substantially parallel thereto. Paseo is divided into two driveways, the west driveway is used for southbound motor vehicle traffic and the east driveway is used for northbound motor vehicle traffic. Dr. Morton's testimony on the issue, in narrative, was to the following effect: The streetcar started into the intersection. Witness saw a southbound automobile, traveling at an estimated speed of 50 miles an hour, trying to beat the streetcar across the intersection. The automobile was going too fast. It was right in front of the streetcar; the whole picture was right there; first, it was north of the streetcar, then right in front of the streetcar, then south of the streetcar. Witness could not estimate how far the automobile was from the streetcar when he first saw it. Witness testified that the motorman stopped the streetcar just in time to miss hitting the automobile; if he "had not suddenly slowed down or stopped" there would have been a collision. The automobile drove squarely into the path of the streetcar. Witness testified he had not been on streetcars when the motorman stopped in such...