Thompson v. Kansas City Public Service Co.

• Decision Date: 10 January 1938
• Citation: 114 S.W.2d 145,232 Mo.App. 1124
• Parties: MARTHA JEAN THOMPSON, BY NEXT FRIEND, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

114 S.W.2d 145

232 Mo.App. 1124

MARTHA JEAN THOMPSON, BY NEXT FRIEND, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

January 10, 1938

Appeal from Jackson Circuit Court.--Hon. Darius A. Brown, Judge.

AFFIRMED.

Judgment affirmed.

Joe Miniace, James R. Sullivan and Hume & Raymond for respondent.

Charles L. Carr, Watson, Ess, Groner, Barnett & Whittaker and E. E Ball for appellant.

CAMPBELL C. Sperry, C., concurs.

OPINION

CAMPBELL C.

The plaintiff, and infant, by her next friend, brought this suit to recover damages for personal injuries. She had a verdict and judgment in the sum of $ 4000. The defendant has appealed.

The evidence on behalf of the plaintiff shows that defendant was a common carrier of passengers for hire by street car; that on September 29, 1934, plaintiff then about five and one-half months old, was carried in the arms of her mother on board one of defendant's street cars; that the mother, after paying the usual fare, took two, three, or four steps toward the back of the car when the car started forward "with a sudden and unusual violent lurch and jerk," and she was thrown to the floor of the car and plaintiff was thrown under a seat in the car and severely injured, the substance of defendant's evidence was that the street car moved forward slowly in the usual and ordinary manner.

The defendant says this is not a res ipsa loquitur case for the reason the accident could have been occasioned by the "sole negligence and awkwardness" of plaintiff's mother.

The petition charged general negligence. The answer was a general denial. There is nothing in plaintiff's evidence tending to show any negligence on the part of plaintiff's mother. The evidence for the plaintiff shows that the sudden and unusual jerk and lurch of the street car was the sole and direct cause of plaintiff's injuries. There is no claim that plaintiff's mother knew or had means of knowing the cause of the sudden starting of the street car. Nor is there anything in the record indicating that the defendant in the trial contended that the pleadings and proof did not bring the case within the res ipsa loquitur rule. Nor is there anything in the record indicating that defendant in the trial contended there was any evidence tending to show that the accident was caused or contributed to by the "negligence and awkwardness" of plaintiff's mother.

The supreme court en banc held that the doctrine res ipsa loquitur applies "when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence." [McCloskey v. Koplar, 329 Mo. 527, 542, 46 S.W.2d 557.]

Other cases announce the same rule. [Williams v. San Francisco Ry. Co., 85 S.W.2d 624; Zimmerman v. Kansas City Public Service Company, 41 S.W.2d 579.]

Considering the record, we will determine the appeal from the theory that the case is governed by the res ipsa loquitur rule.

Plaintiff's main instruction, after submitting preliminary matters, told the jury that if it found the street car was caused or allowed to suddenly start with an unusual and violent lurch and jerk, and as a direct result thereof plaintiff was thrown to the floor of the street car and injured, "then you are instructed that such facts (if you believe them to be true) are sufficient circumstantial evidence upon which the jury may infer that the defendant was negligent, and you may so find, unless you find and believe from other facts and circumstances in evidence that said sudden start, if any, with an unusual and violent lurch and jerk, if any, of said street car, was not due to the negligence of the defendant."

Counsel cite many cases in support of their claim that the instruction was erroneous, but rely mainly on the following cases: Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, and cases cited therein.

The main instruction in the present case is similar to the instruction condemned in the Kennedy case. In speaking of the latter instruction the court said: "Although the jury was warranted in inferring, from the facts mentioned in the instruction and other facts in the case, that one of defendant's employees opened the elevator gate and left it open, as we have already said in discussing the sufficiency of the evidence, nevertheless, it was not the province of the trial court to tell the jury that they were 'at liberty' to draw this or any other inference from the facts proven. This instruction singled out certain facts and commented on their legal effect. It was argumentative in character. It might have been accepted by the jury as decisive of the case. It was better calculated to mislead and confuse the jury than to enlighten them in their consideration of the whole case. It invaded the province of the jury in suggesting to them a course of reasoning to follow in determining the question of defendant's negligence. [Finn v. United Rys. Co. (Mo. Sup.), 267 S.W. 416, 420; Rice v. Transit Co. (Mo. Sup.), 216 S.W. 746, 753.] In the early case of Chouquette v. Barada, 28 Mo. 491, 498, 499, Judge SCOTT said: 'When a party has secured the admission of his evidence, he has no right to give it an undue importance by an instruction to the jury as to the use they may make of it. Counsel can make their own comments on the evidence, and the jury will determine their weight. . . . Where the law fixes the weight or the effect of evidence, there is no impropriety in the court's declaring it to the jury; but when one fact or piece of evidence is merely used to show the existence of another fact which is to be found by the jury, the court cannot, by way of instruction, direct the jury that the inference is warranted. If it is so, the law presumes the jurors more competent to draw it than the judge. Our law will not allow the judge even to comment on the evidence, where the jury may give what weight they please to the comment.' [See, also, Gittings v. Jeffords, 292 Mo. 678, 693, 694, 239 S.W. 84, 89; Supply Co. v. Wolfe, 127 Mo. 616, 620, 30 S.W. 145, 148; Primm v. Haren, 27 Mo. 205, 211.] Considering the persuasive influence of the court's instructions with the average jury, this instruction was manifestly unfair to the defendant and highly prejudicial to his right to have the jury properly instructed and directed on the law of the case."

The ruling in the Kennedy case undoubtedly sustains many of the contentions of the defendant with respect to the main instruction in the case at bar. The holding in the Kennedy case has been weakened, if not overruled, in latter cases to which reference will hereinafter be made.

In the McCloskey case the court considered and held erroneous an instruction which told the jury upon finding certain facts, "then the court instructs you that the presumption is that the falling over of said radiator was occasioned by some negligence of defendants, their agents or servants, and the burden of proof is case upon defendants to rebut this presumption of negligence and show by a preponderance of the evidence that the falling over of said radiator was not caused by negligence of defendants, their agents or servants, and unless you further find from the evidence that the falling over of said radiator could not have been prevented by defendants, their agents or servants, by use of ordinary care, then your verdict must be in favor of plaintiff and against defendants."

In discussing the instruction, the court said: "In directing what inference of fact must be drawn from the facts hypothesized, it flagrantly invades the province of the jury. From the facts, namely, 'While therein plaintiff was passing along an aisle or passageway in the balcony of said theater and there was a heavy radiator in said theater adjacent to said aisle or passageway, and said radiator was in possession and control of defendants, and said radiator fell over and upon plaintiff and injured him as he was passing thereby,' the law does not draw a conclusion of negligence. Reasonable minds might well differ as to whether negligence on the part of defendants should, or could, be inferred from such facts. All that can be said with respect to them, as a matter of law, is that negligence may properly be inferred from them, and therefore that plaintiff having produced evidence tending to establish them made a prima facie case, that is, a case for the jury. When such a case was made the burden of going forward with the evidence devolved upon the defendants. But whether defendants did, or did not, offer evidence on their part, it was solely the prerogative of the jury to determine what inference, if any, they would draw from plaintiff's proof, without intrusion on the part of the Court."

The instruction under consideration does not say what inferences must or should be drawn from the evidence, nor does it say the burden of proof was on the defendant. On the contrary, the jury was in effect told that if it found facts sufficient to bring the case within the res ipsa loquitur doctrine, then it could from such facts infer that defendant was negligent, and that it could so find, unless it believed from other facts that the defendant was not negligent. The instruction does not single out any fact or comment on or argue any fact in evidence. It does, however, advise the jury as to the legal effect of the evidence provided it found that evidence to be true.

The court in the case of Stanton v. Jones, 332 Mo. 631 59 S.W.2d 648, 651, quotes with approval from the case of Ward v. Fessler, 252 S.W....