Statler v. St. Louis Public Service Co.

• Decision Date: 02 April 1957
• Docket Number: No. 29525,29525
• Citation: 300 S.W.2d 831
• Parties: Pearl STATLER (Plaintiff), Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 831

300 S.W.2d 831

Pearl STATLER (Plaintiff), Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant) Appellant.

No. 29525.

St. Louis Court of Appeals, Missouri.

April 2, 1957.

Robert E. Staed, St. Louis, Lloyd E. Boas, St. Louis, of counsel, for appellant.

James E. Hullverson and Hullverson, Richardson, Hullverson & Jeans, St. Louis, for respondent.

MATTHES, Judge.

This is an action for damages for personal injuries sustained by plaintiff while she was a passenger on the defendant's Cass Avenue bus, in the City of St. Louis, Missouri. The case was submitted under the res ipsa loquitur doctrine. From the judgment for $3,500 entered on the jury verdict defendant has appealed. Defendant contends that prejudicial error was committed in giving instruction No. 5 and in refusing instruction 'A'. It is also asserted that the verdict is grossly excessive.

On the morning of August 29, 1954, plaintiff boarded one of the defendant's eastbound buses at Newstead and St. Louis Avenues, in the City of St. Louis, Missouri, for the purpose of being transported to her place of employment, which was a building at 722 Chestnut Street. She occupied a seat next to the aisle. The bus proceeded eastwardly on Carr Street until it reached Eighth Street, when a 'terrific jerk or lurch' occurred. In plaintiff's words, 'It was very terrific and so sudden.' Plaintiff was unable to state whether the bus was making a right turn to proceed southwardly on Eighth Street at the time of the sudden jerk. Neither could she testify as to the speed of the vehicle except to say, 'It wasn't fast.' The unusual movement of the bus threw plaintiff to the aisle floor where she landed in a sitting position. With assistance plaintiff returned to the seat. Just prior to leaving the bus at Chestnut Street plaintiff informed the operator that she 'was the lady that was sitting on the floor back there', and asked for, but did not receive, the bus driver's name and number.

Roy Myers was the operator of the motor bus in question. His version of the events harmonized with plaintiff's testimony in some respects, and conflicted therewith in others. He conceded that there was an unusual movement of the vehicle that he was operating, which he explained in this manner: As the bus approached Eighth Street traveling eastwardly on Carr, he observed a truck parked on the south side of Carr, facing in an eastwardly direction. Because of the presence of the truck and its close proximity to Eighth Street, Myers was forced to swing the bus to the opposite side of Carr in order to negotiate the right turn into Eighth Street. While in the process of making the turn, the 'rear end of the bus slid approximately six to eight feet to the left * * * striking something rough, a rough place in the street'. Myers testified that the street was wet from a misting rain, whereas the plaintiff's testimony was that the street was dry. Myers' estimate of the speed of the bus at the time it was turning was from three to five miles per hour, which coincided with plaintiff's version that it was 'not going fast'. Immediately after the skidding of the bus, Meyers looked into the rearview mirror, and observed nothing unusual. He continued southwardly on Eighth Street, and as he approached Chestnut plaintiff informed him that she had been thrown out of the seat as the bus was turning into Eighth Street off of Carr. Other pertinent evidence will be accorded consideration in disposing of the points raised and presented.

We consider instruction No. 5 not only in connection with verdict-directing instruction No. 2 to which instruction No. 5 specifically referred, but with all of the instructions. Venditti v. St. Louis Public Service Co., 362 Mo. 339, 240 S.W.2d 921, loc. cit. 926. Instruction No. 2, after stating the duties cast upon the defendant as a public carrier of passengers, conditioned the verdict for plaintiff upon a finding of negligence in that the bus suddenly jerked and jolted in a violent manner, resulting in plaintiff's being injured. The instruction told the jury that from the sudden jerking and jolting they 'may infer that the defendant * * * failed to exercise the highest degree of care and was negligent, * * *' unless the jury found 'from all of the facts and circumstances in evidence that such occurrence was not due to the defendant's negligence'. At the defendant's request the court gave a burden of proof instruction by which the jury was informed that they should not find that the defendant was negligent 'from the mere fact of the occurrence * * * and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be in favor of the defendant'. By criticized instruction No. 5 the jury was told that if they found that the 'occurrence' mentioned in instruction No. 2 took place as submitted therein, 'then the negligence of the defendant submitted in that instruction need not be proved by direct and specific testimony, but may be inferred from all of the facts and circumstances in evidence'. (All italics supplied.)

Defendant's specific and precise attack upon the instruction is that the italicized portion thereof authorized 'the jury to infer negligence from the sudden and unexpected skidding of the bus', which, according to defendant's contention, was not a negligent act.

We observe at the outset that if the instruction was erroneous for the reason assigned, with which we do not agree, the same vice inhered in instruction No. 2 given at the request of plaintiff (unchallenged by defendant), which also authorized the jury to consider all of the facts and circumstances in evidence and also in the burden of proof instruction which directed a defendant's verdict if the jury found 'from all the evidence in the case' that the defendant was negligent.

While it is of course true that the mere skidding of a motor bus does not in and of itself necessarily constitute negligence, ¹ it by no means follows that negligence may not in any event be inferred therefrom. This is clearly pointed out in Rodefeld v. St. Louis Public Service Co., Mo.Sup., 275 S.W.2d 256, loc. cit. 258, wherein the Supreme Court stated:

'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. People's Motorbus Co., 327 Mo. 719, 37 S.W.2d 898.'

This principle is also recognized in Quadlander v. Kansas City Public Service Co., 240 Mo.App. 1134, 224 S.W.2d 396, and Bear v. Devore, Mo.App., 176 S.W.2d 862, which follows companion case of Bear v. Devore, Mo.App., 177 S.W.2d 674.

We have in mind that defendant's operator stated that as the rear end of the bus slid or skidded, it struck a rough place in the street. Apparently this testimony was relied upon to explain the sudden jolting and jerking of the vehicle. In rebuttal plaintiff established by an employee of the City of St. Louis who kept records and made reports in connection with the maintenance of streets in the city, that there was no record to show that the street in the designated area had been repaired subsequent to the date of the occurrence and prior to the trial. This proof was followed by the introduction of photographs taken some time following the date plaintiff was injured. Mr. Myers admitted they did not reveal the 'rough place' which he had previously stated was present. He further testified that he was thoroughly familiar with the intersection as he had been operating buses over the same route for approximately five months prior to the date in question. On the morning of the occurrence he had made other turns with his bus in the normal manner and without unusual consequences. From the foregoing facts and circumstances, the fact that the bus was moving at a very slow speed (3 to 5 miles per hour); the fact that the street surface was dry; the unusual movement of the rear end of the bus a distance of 6 to 8 feet in such a manner that plaintiff was thrown from her seat, we are not at liberty to hold as a matter of law that the skidding occurred under such circumstances that an inference of negligence could not arise therefrom. Consequently we hold instruction No. 5 did not misdirect the jury and is not fairly subject to the objections made against it.

Objections similar on principle have been heretofore considered and disallowed upon appellate review of instructions which gave the jury the right to infer negligence from all of the facts and circumstances. See White v. St. Louis Public Service Co., Mo.App., 249 S.W.2d 498, affirmed 364 Mo. 111, 259 S.W.2d 795; Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348; Long v. St. Louis Public Service Co., Mo.App., 288 S.W.2d 417.

Refused instruction 'A' told the jury that:

'* * * the mere skidding of the defendant's motor bus is not any evidence of negligence and in this connection you are instructed that if you find and believe from the evidence that the driver of the defendant's bus was exercising the highest degree of care in the operation of the bus at all times, and further find that the bus suddenly skidded against a rough place in the street, then you are instructed that the plaintiff cannot recover and your verdict must be for the defendant.'

In arguing that the instruction was proper, defendant emphasizes and relies on the well-settled rule that in determining whether an instruction offered by defendant has factual support, we must consider the evidence in the light most favorable to the defendant, together with all favorable and reasonable inferences to be drawn therefrom. Rose v. St. Louis Public Service Co., Mo.Sup., 205 S.W.2d 559, loc. cit. 560, and cases there cited. Defendant insists that since the bus operator testified unequivocally with respect to the skidding, it...