Story v. People's Motorbus Co. of St. Louis

• Citation: 37 S.W.2d 898,327 Mo. 719
• Decision Date: 14 April 1931
• Docket Number: 29290
• Parties: Erie Story, a Minor, by Joseph C. Story, Her Father and Natural Guardian, v. People's Motorbus Company of St. Louis, Appellant
• Court: United States State Supreme Court of Missouri

37 S.W.2d 898

327 Mo. 719

Erie Story, a Minor, by Joseph C. Story, Her Father and Natural Guardian, v. People's Motorbus Company of St. Louis, Appellant

No. 29290

Supreme Court of Missouri

April 14, 1931

Respondent's Motion for Rehearing Overruled April 14 1931.

Appeal from Circuit Court of City of St. Louis; Hon. Anthony F Ittner, Judge.

Reversed and remanded.

Carter, Jones & Turney and James E. Garstang for appellant.

(1) It is shown in the evidence that the cause of the accident was the act of the codefendant, National Refining Company, for which the appellant was in no way answerable, and in this state of plaintiff's evidence the doctrine of res ipsa loquitur or presumptive negligence cannot apply. Cook v. Union Electric Co., 232 S.W. 248; Scott v. Davis, 270 S.W. 433; Meade v. Supply Co., 300 S.W. 517; Nelson v. Stove Co., 8 S.W.2d 918; Klein v. Beeten, 169 Wis. 385, 172 N.W. 736, 5 A. L. R. 1237 and note; Mass. Bonding & Insurance Co. v. Park, 197 Mich. 142, 163 N.W. 891; Linden v. Miller (Wis.), 12 A. L. R. 665, and note; McAnany v. Shipley, 189 Mo.App. 396. (2) Skidding of an automobile is not in and of itself evidence of negligence. Heidt v. Motorbus Co., 284 S.W. 840; Williams v. Holbrook, 216 Mass. 239, 103 N.E. 633; Loftus v. Pelletier, 223 Mass. 63, 111 N.E. 712; Rango v. Fennell, 168 N.Y.S. 646; Linden v. Miller, 172 Wis. 20, 177 N.W. 909, 12 A. L. R. 665 and note. (3) The appellant has a right to the benefit of plaintiff's specific charges of negligence against the National Refining Company in so far as they are supported by the evidence in the case. The withdrawal of this evidence from the consideration of the jury was highly prejudicial to the rights of this appellant, as this is the only possible way by which this appellant could acquit itself of negligence under plaintiff's petition. Hulen v. Wheelock, 300 S.W. 484; Asmus v. Railroad, 152 Mo.App. 521.

Foristel, Mudd, Blair & Habenicht and Harry S. Rooks for respondent.

(1) Since the record here affirmatively shows that all the evidence at the trial and in the bill of exceptions relating to the appellant's negligence, the application of the res ipsa loquitur doctrine and plaintiff's injuries is not produced in the record before this court, appellant is not entitled to a review of the sufficiency of the evidence thereon. It must be presumed that the verdict and judgment were sustained by the evidence. O'Malley v. Heman Const. Co., 255 Mo. 392. (2) Appellant, voluntarily of its own motion, submitted the case to the jury on general negligence by its instruction and cannot complain of such submission. Torrence v. Pryor, 210 S.W. 430; Crum v. Crum, 231 Mo. 626. (3) Testimony of plaintiff, a passenger on defendant's bus, that when she looked up and first saw the truck it was in the middle of the street, right in front of the bus; that she did not know where the truck came from; that an accident was then imminent; that the bus driver put on his brake and the bus skidded and hit the telegraph pole, and that plaintiff was thrown back and injured thereby, showed a case for the jury under the res ipsa loquitur doctrine. Stauffer v. Railway, 243 Mo. 305; Price v. Railway, 220 Mo. 435. (4) Testimony of defendant's witnesses could not destroy plaintiff's prima-facie case under the res ipsa loquitur doctrine. Brown v. Railroad, 256 Mo. 536; Anderson v. Door Co., 182 S.W. 820. (5) The testimony of the drivers of the bus and truck, and other witnesses for defendants, was sufficient for the jury to find that the accident was caused by negligence of appellant's motorbus driver in several respects; for example, negligently driving the bus too fast down a slick street; negligently approaching the truck too close to control bus properly when truck had to be turned or stopped; negligently disregarding the truck driver's signal; negligently approaching and trying to pass truck on a slick downgrade; negligently failing to foresee that truck was going to stop or turn; negligently failing to take adequate precautions in anticipation thereof, etc. (6) "Negligence is not a fact which is the subject of direct proof, but an inference from facts put in evidence." Baird v. Railway, 146 Mo. 281; Gerber v. Kansas City, 304 Mo. 174. (7) The giving of National Refining Company's instructions 4, 5, 6 and 8 was not prejudicial error to defendant. Instructions 4 and 5 withdrew charges of negligence not sustained by the evidence. Instructions 5 and 6 properly directed a verdict for defendant Refining Company if the jury found the facts therein required. (8) But whether said instructions were correct or incorrect, the appellant cannot complain of them since they were given at the request of its codefendant, the National Refining Company. Clark v. Railroad, 234 Mo. 424; Beave v. Transit Co., 212 Mo. 355; State ex rel. Mersereau v. Ellison, 260 Mo. 138. (9) If instructions 4, 5, 6 and 8 were erroneous, they would not be prejudicial to appellant, because they did it no harm.

Davis, C. Cooley, C., concurs; Westhues, C., not sitting.

OPINION

DAVIS

This is an action against defendant, The People's Motorbus Company of St. Louis, a common carrier for hire (hereinafter called defendant), for damages for personal injuries averred to have been sustained by plaintiff while a passenger on a bus operated by it. The National Refining Company was also made a party defendant in the petition. Plaintiff tried the cause to a jury against both defendants, but the National Refining Company prevailed before the jury, and, as it is not a party to this appeal, we dismiss it from further consideration, except as to certain instructions given by the court at its instance, of which defendant complains. The jury returned a verdict in favor of plaintiff and against defendant in the sum of $ 18,500, and defendant appealed from the judgment entered on the verdict.

Plaintiff's petition against defendant is predicated on the doctrine res ipsa loquitur, and against the National Refining Company on assignments of specific negligence. The evidence adduced in behalf of plaintiff warrants the finding that defendant, a common carrier of passengers for hire, operates motorbuses over a route along Southwest Avenue, a public street in the city of St. Louis. Southwest Avenue runs east-and-west, and at the place in question was sixty feet in width. Near the scene of the accident, Southwest Avenue, for a certain distance over the Missouri Pacific Railroad tracks, comprises a viaduct, which slopes from its apex to the east and west, respectively. To the south side of Southwest Avenue, there was located a White Rose gasoline filling station, with driveways to and from the street. To the north side of said highway, there was situated a warehouse of the National Refining Company, with a driveway into it from the street. We infer from the evidence that both the filling station and the warehouse were located to the east of the viaduct, but approximately adjoining it.

On the morning of November 18, 1926, plaintiff, who was then sixteen years of age and on her way to her work, boarded, some distance west of the viaduct, a motorbus of defendant, and from then until the collision of the bus with a telephone pole, located about fifty feet east of the filling station, she traveled on said bus as a passenger for hire. The collision occurred at about seven-thirty A. M. on said day. There was ice on Southwest Avenue at said time. While the bus was proceeding eastwardly down the east slope of the viaduct, or at least down grade, with plaintiff sitting in the right-hand front seat, plaintiff testified that she saw a truck pull out of the filling station on the south side of the street as they approached it; that she knew or felt that there was going to be an accident; that she arose from her seat, and, as she did so, the bus spun around and hit a telephone post, and she was thrown back across the seat; that as the truck crossed the path of the bus, she felt the bus slow up, the driver put the brakes on, and it began skidding on the ice; that, as she fell back, her shoulders struck the back part of the seat; that she gave her name to the conductor, alighted from the bus, went home on the next bus and went to bed, where she remained three weeks; that she did not see the truck until it turned out in front of her, going straight across the street; that she first saw the truck when it was in front of the bus, and did not see where it came from; that she did not know the distance from the bus to the truck; but it was closer than fifty feet; that she knew nothing about speed.

The only other witness for plaintiff who viewed the occurrence stated that the truck came from the south side of the street and went across, and that, as the truck came out of the drive into Southwest Avenue, out of the drive there and he busted right on the other side, the bus was about ten feet from the drive; that, coming down the hill, the bus driver applied the brakes to get out of the way of the truck and skidded; that the bus did not collide with the truck, but skidded clear around it, in a half circle, for fifty feet, struck a telegraph pole and snapped it in two pieces; that no signal was given by the truck; that the bus was on the right-hand side of the street, about three feet from the curb, and was not going very fast; that when he first saw the truck, it was about the middle of Southwest Avenue, and the bus was then about ten feet from it.

Defendant's evidence tends to show that the driver of the bus observed a truck proceeding east on Southwest Avenue, with the driver holding his hand out straight, when the bus was about twenty feet to the rear, and witness attempted to figure out the way he was going to turn; that the truck was practically stopped in the middle...