Smith v. Creve Coeur Drayage and Motorbus Co.

• Citation: 296 S.W. 457,220 Mo.App. 1122
• Parties: JOHN F. SMITH, RESPONDENT, v. CREVE COEUR DRAYAGE AND MOTORBUS COMPANY, APPELLANT.
• Decision Date: 07 June 1927
• Court: Court of Appeal of Missouri (US)

296 S.W. 457

220 Mo.App. 1122

JOHN F. SMITH, RESPONDENT, v. CREVE COEUR DRAYAGE AND MOTORBUS COMPANY, APPELLANT.

Court of Appeals of Missouri, St. Louis

June 7, 1927

Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.

Judgment affirmed.

Geers & Geers for appellant.

(1) (a) Because the plaintiff, while testifying on the witness stand claimed to have full knowledge concerning the accident and described fully and specifically just what did cause his alleged injury, the doctrine, res ipsa loquitur, did not apply in the case, and the giving of plaintiff's instruction numbered 1, which permitted a recovery under that doctrine, constituted reversible error. Cook v. Union Electric Lt. & Pr. Co. (Mo. App.), 232 S.W. 248. (b) The doctrine, res ipsa loquitur, is a rule of evidence which applies only when the facts are such that the court can and will take judicial notice that unless negligence had been present in some form, the injury would not have occurred, and the facts causing the injury are peculiarly within the knowledge of the defendant and not equally accessible to the plaintiff. Russell v. St. L. & S. F. Ry. Co. (Mo App.), 245 S.W. 590. (c) The rule, res ipsa loquitur, aids the injured person who does not know how a certain catastrophe happened or does not fully know and needs the aid of a presumption to complete his case But, if he knows just how it came to happen and just what caused it and proves it, there is neither room nor necessity for a presumption. McAnamy v. Shipley, 189 Mo.App. 396, 176 S.W. 1079; Cook v. Union Electric Lt. & Pr. Co. (Mo. App.), 232 S.W. 248, 249; Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932. (d) Where the cause of an accident by which a passenger was injured is known as well to the passenger as to the carrier, the presumption of negligence which arises in the event of the injury of a passenger while in the carrier's vehicle has no application and the passenger must affirmatively show negligence. Pointer v. Mountain Ry. Const. Co. (Mo. App.), 189 S.W. 805, 809. (e) Where the evidence shows the precise cause of the accident there is, of course, no room for the application of the doctrine of presumption. Cassady v. Old Colony St. Ry. Co., 184 Mass. 156, 68 N.E. 10; 63 L. R. A. 225, cited with approval in Price v. Met. St. Ry. Co., supra. (2) It was error for the court to refuse defendant's refused instructions numbered five and six, laying the burden of proof on the plaintiff. Cook v. Union Electric Lt. & Pr. Co. (Mo. App.), 232 S.W. 248, 249. (3) (a) It was error for the court to permit Dr. Floyd Stewart to answer the hypothetical question propounded to him, predicated on facts not proven. Russ v. Wabash Western Ry. Co., 112 Mo. 45, 20 S.W. 472. (b) The rule that in putting a hypothetical question, the facts embraced in the hypotheses must be within the confines of the evidence or the opinion of the witness will be inadmissible is an unbending one. Benjamin v. Met. St. Ry. Co., 50 Mo.App. 602.

Sheridan, Sheridan & Robertson and Arthur L. Wackwitz for respondent.

(1) Where the relationship of passenger and carrier is established, and the petition charges general and not specific negligence, and an unusual occurrence and the passenger's consequent injury, without his fault, are shown, and the car is shown to be exclusively under defendant's control, the doctrine of res ipsa loquitur applies. Price v. Met. St. Ry. Co., 220 Mo. 435; Loftus v. Met. St. Ry. Co., 220 Mo. 470; Olsen v. Railroad, 152 Mo. 432; Lammert v. Wells, 282 S.W. 487; Porter v. St. Joseph Ry. L. H. & P. Co., 277 S.W. 913, 311 Mo. 66; Stauffer v. Railroad, 243 Mo. 305; Whitlow v. Railroad Co., 282 S.W. 525, 531; Carlson v. Wells, 276 S.W. 26; Bergfeld v. K. C. Rys. Co., 285 Mo. 654; Rhodes v. Railroad, 255 S.W. 1084; MacDonald v. Railroad, 219 Mo. 486-487; Simpson v. Railroad Co., 192 S.W. 739; Mayne v. K. C. Ry. Co., 287 Mo. 235; Williams v. Railroad, 133 Mo.App. 376-377; Rice v. Railroad Co., 153 Mo.App. 52. (2) Plaintiff is entitled to the presumption of negligence even though he offered some proof of specific acts of negligence. Price v. Met. St. Rys. Co., 220 Mo. 456; Loftus v. Met. St. Rys. Co., 220 Mo. 470; Briscoe v. Met. St. Rys. Co., 222 Mo. 114-115; Stauffer v. Railroad, 143 Mo. 325-326; Whitlow v. Railroad Co., 282 S.W. 525; Williams v. Railroad Co., 133 Mo.App. 376-377; Wolvern v. Springfield Traction Co., 143 Mo.App. 648; Rice v. Railroad Co., 153 Mo.App. 52; Kilroy v. K. C. & K. V. Ry. Co., 195 S.W. 522; Stoffer v. Railroad Co., 204 S.W. 588; Gibson v. Wells, 258 S.W. 1; Brown v. Railroad, 256 Mo. 535-536; Gleeson v. Railroad, 140 U.S. 435; Cecil v. Wells, 214 Mo.App. 193.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.

Plaintiff below recovered judgment for $ 4,000 against the defendant in an action for damages for injuries sustained by reason of a motorbus of the defendant company, in which plaintiff was riding as a passenger, running off of the highway and colliding with a pole.

The petition alleges general negligence. The answer was a general denial.

It appears that the plaintiff went to the jury upon an instruction based upon the doctrine of res ipsa loquitur whereby the jury were told that if they believed from the evidence that a motorbus of the defendant on which plaintiff was a passenger was caused to collide with a telegraph pole, "the presumption is that such collision was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish that there was no negligence on its part, and that the injury, if any, was occasioned by an inevitable accident, or by some cause which such highest degree of care could not have avoided, and unless you so find, you will return a verdict for the plaintiff."

The defendant's main assignment of error is that the trial court erred in giving plaintiff's main instruction submitting the case upon the theory of res ipsa loquitur. In support of this contention it is urged that though plaintiff's petition alleges general negligence, and relies upon the doctrine of res ipsa loquitur, the plaintiff himself testified "fully and specifically just what did cause his alleged injury," thus showing that the facts causing the collision were as well within his knowledge as that of the defendant, and therefore there was "neither room nor necessity for the presumption" of negligence which arises in collision cases where the injury of a passenger while in the carrier's vehicle, the facts causing the injury are peculiarly within the knowledge of the defendant and not equally accessible to the plaintiff. [Citing Cook v. Light & Power Co. (Mo. App.), 232 S.W. 248; Russell v. Railway Co. (Mo. App.), 245 S.W. 590; McAnany v. Shipley, 189 Mo.App. 396, 176 S.W. 1079; Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Pointer v. Ry. Constr. Co. (Mo. App.), 189 S.W. 805.]

After carefully examining the record before us we have come to the conclusion that plaintiff's testimony is not sufficiently specific to deprive him of the right to go to the jury under the rule of res ipsa loquitur, and that the point is without merit. [Price v. Met. St. Rys. Co., 220 Mo. 435, 119 S.W. 932; Gibson v. Wells (Mo. App.), 258 S.W. 1; Kilroy v. Ry. Co. (Mo. App.), 195 S.W. 522; Williamson v. Railroad, 133 Mo.App. 375, 113 S.W. 239; Cecil v. Wells, 214 Mo.App. 193, 259 S.W. 844.]

According to plaintiff's own testimony (and he called no other witness who had any knowledge of the accident) he was a passenger on defendant's bus making the trip from Wellston to St. Charles, Missouri, and was sitting on a seat next to the aisle on the right side of and two or three seats from the rear of the bus; that as the bus was going down a grade about a quarter or a half mile west of St. John's Station on the St. Charles Rock Road, and at its intersection with Charlack avenue, at a time when the bus was traveling at about thirty-five miles per hour, an automobile coming north on Charlack avenue turned east into St. Charles Rock Road almost directly in front of the bus; that the bus driver set his brakes and turned his bus to the right and the bus left the pavement, went into the ditch on the right side of the road and struck two transformer poles, causing glass from broken windows to fall over plaintiff, and to throw him forward over a seat in front of him, causing him injury. Plaintiff further testified that when he first saw the automobile coming north on Charlack avenue it was about twenty feet from the concrete pavement of the St. Charles Rock Road, at which time the bus was distant from the said automobile about sixty feet; that the driver of the bus sat on the left side of the bus and there was nothing to obstruct his view of the automobile approaching from Charlack avenue. Plaintiff further testified that when the car was right in front of him on the concrete, Lowe, the driver of the bus, "cut the bus short, as short as he could; he turned to the right. I was still sitting in my seat. And then I guess the whole thing ran off the slab of concrete. I know the front did; it went in and hit the pole. It never stayed on the concrete slab."

Our Supreme Court in banc in the leading case of Price v. St Ry. Co., 220 Mo. 435, 119 S.W. 932, ruled that in an action by a passenger against a carrier for injuries arising as the result of a collision, the plaintiff, under a general charge of negligence relying upon the doctrine of res ipsa loquitur, need prove no more than the relationship of passenger and carrier, the collision, and the exclusive control over the car by the defendant, and plaintiff's consequent injury, and the extent thereof, thereby resting his case upon the well-founded...