Warner v. Terminal R. Ass'n of St. Louis

• Decision Date: 13 April 1953
• Docket Number: No. 43093,No. 1,43093,1
• Citation: 363 Mo. 1082,257 S.W.2d 75
• Parties: WARNER v. TERMINAL R. ASS'N OF ST. LOUIS
• Court: Missouri Supreme Court

Page 75

257 S.W.2d 75

363 Mo. 1082

WARNER v. TERMINAL R. ASS'N OF ST. LOUIS.

No. 43093.

Supreme Court of Missouri, Division No. 1.

April 13, 1953.

Arnot L. Sheppard, Warner Fuller, Lyman J. Bishop, St. Louis, for appellant.

Hullverson & Richardson, St. Louis, for respondent.

VAN OSDOL, Commissioner.

In this action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., plaintiff relied upon the inference permitted by the res ipsa loquitur doctrine, and stated the circumstances of an unusual occurrence injuring plaintiff as the foundation for an inference of defendant's negligence as follows, 'On or about May 5, 1951, plaintiff, while employed by the defendant, and while operating a tractor in the railroad terminal of the defendant in the City of St. Louis, Missouri, drove said tractor along a platform in which an elevator or hoist formed a part of said platform. While plaintiff was driving said tractor across said hoist which at that time was level with the platform, said elevator suddenly and without warning was caused to descend as a result of the negligence of the defendant. The defendant had the right to exclusive control of said elevator, its operation, and movement.' A jury returned a verdict for plaintiff awarding $8,500 damages, and defendant has appealed from the judgment rendered.

Defendant-appellant contends (1) that the trial court erred in overruling defendant's motion for a directed verdict. Defendant-appellant argues that to make out a case for the application of the rule of res ipsa loquitur the facts relied upon must be such as to reasonably exclude any other hypothesis than that of the negligence claimed and must exclude any hypothesis that the injury was due to the acts of third persons, as well as that any defect in the instrumentality was latent or of so recent origin as to afford no reasonable opportunity for discovery by defendant. Also, in this connection, defendant-appellant urges that plaintiff's principal Instruction No. 2, which included the requirement that the jury find 'that no one not employed by the defendant operated said cable device so as to cause it to descend,' was not supported by evidence of probative force and thus the instruction was broader than the evidence and the evidence in this particular respect was insufficient to support the submission of plaintiff's res ipsa loquitur case. Defendant-appellant further contends (2) error of the trial court in giving plaintiff's Instruction No. 5; and (3) in failing to promptly sustain defendant's objection to the assertedly prejudicial cross-examination of a witness. And defendant-appellant also contends (4) the amount of the jury's award, $8,500, was excessive.

On May 5, 1951, plaintiff was working for defendant as a baggage hauler at the Union Station in St. Louis. One of his duties was to drive a Case gasoline-propelled tractor in moving baggage trucks or wagons on and about the main platform of the station.

Hydraulic elevators or hoists are provided for access to and from the floor of the subway and the station-platform floor. The elevators are for the use of defendant's employees; but the elevators are also used and operated by express and grocery deliverymen delivering parcels and groceries to the station. The movement of an elevator between the subway and main station floors is governed by controls consisting of chains terminating in metal rings. One of the controls is on the floor of the elevator itself. By this control the elevator is started from the station-floor level and moves down to the floor of the subway. When the elevator is at the subway-floor level, the operator may pull on a chain control in the subway and the elevator is then propelled to the level of the station floor; but there are 'signs all over' prohibiting the use of this chain control by anyone in the subway when the elevator is at the station-floor level. Contained in a metal incasement affixed in the concrete station floor, very close to the side of the elevator aperture or shaft, is a chain control by which one at the station-floor level may cause the elevator to come up from the subway floor. 'If the elevator is down and you wanted (it) to come up to go down on, why you pull a ring on top and it comes up * * * and when the elevator gets up you get on the elevator and pull a ring on top of the elevator and the elevator goes down.' It was admitted that defendant had control of the elevator.

Plaintiff went to work at six o'clock in the morning of May 5th. He went over 'on track 10, and got four wagons, empty bull wagons, to put baggage and milk on for Frisco 4, and I come around to track platform 21, and down to the north elevator, just before I got to the elevator, oh, say, twenty inches or two foot of the elevator why I stopped.' He uncoupled the wagons from the tractor, 'and in place of going straight across the elevator I cut real short as I could and pulled up and when I went--the left front wheel hit the corner of the elevator, why it just automatically went down like a ton of lead if you would drop it in the air. * * * Well I fell and it throwed me and I jumped to get out. To get out to keep from going down the elevator. * * * When I come to I was laying flat on my back (on the station-level floor).' Plaintiff had nothing to do with the maintenance of the elevator. He had no idea what caused the elevator to fall. He had not had anything like that 'occur to me before.'

Two witnesses for plaintiff, employees of defendant, were sitting in the subway awaiting the time to go to work. They were 'talking and just kind of looking away, just staring around watching the movement of people coming in to work. Well, all of a sudden we heard a noise * * * and I was already facing in the direction of the elevator and I seen the elevator make a drop and when it come on inside there was a tractor laying on its left side * * * that was really faster than it should have come down.' Although, as stated, it was shown that express and grocery deliverymen used the elevator in delivering parcels and groceries to the Union Station, these witnesses did not see anyone near the elevator chain control in the subway. They didn't believe anybody pulled the control from the bottom on that occasion. 'I never seen nobody. * * * there was nobody moving. * * * In a way, we wasn't looking at it in particular, but we was looking and I believe if there had been anybody left there we would have seen them getting away.'

There was evidence tending to show that the same day, about four hours later, another employee had pulled the control when the elevator was at the station-floor level. The elevator was delayed in its downward movement long enough that it 'should have been almost to the bottom of the subway. * * * that is unusual, usually they start whenever you pull the chain, but never before nor after have I seen that.'

There was evidence introduced by defendant tending to show that before the occurrence in the morning of May 5th the elevator had been inspected and that, soon after plaintiff's injury and also in the afternoon of the same day, various tests were made and there was no erratic or unusual movement of the elevator; and no defect in the construction of the elevator or fault in its maintenance was discovered.

(1) In general the res ipsa loquitur doctrine does not apply except 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, 46 S.W.2d 557, 92 A.L.R. 641. If the facts attending the occurrence permit the inference of negligence, there is no doubt but that res ipsa loquitur applies to the relationship of master and servant under the Federal Employers' Liability Act. Sibert v. Litchfield & M. Ry. Co., Mo.Sup., 159 S.W.2d 612.

Although there are statements in some cases indicating the contrary, yet it is true that in a res ipsa loquitur case plaintiff is not required to present evidence overthrowing every reasonable theory of nonliability on the part of the defendant. If a plaintiff in such a case were required to produce evidence which would exclude every reasonable theory but that of the negligence of the defendant, the doctrine would be annihilated. Cruce v. Gulf, Mobile & O. R. Co., 358 Mo. 589, 216 S.W.2d 78. See also Terminal R. Ass'n of St. Louis v. Staengel, 8 Cir., 122 F.2d 271, 136 A.L.R. 789; Maxie v. Gulf, M. & O. R. Co., 358 Mo. 1100, 219 S.W.2d 322, 325, 10 A.L.R.2d 1273. As stated in the Maxie case, a plaintiff to come within the doctrine need not show such a state of facts surrounding the accident as excludes every reasonable hypothesis except defendant's negligence. 'The attendant facts must raise a reasonable inference of defendant's negligence but they need not also exclude every other inference.' (Our italics.)

The expressions of this court in denying the application of the doctrine to the facts of particular cases has reference to the essentials of a res ipsa loquitur application to the attendant or surrounding circumstances, or lack of them, and the instrumentality in the particular case considered; but, it is not to be assumed the language used relating to other hypotheses than that of the negligence claimed in the cases considered is applicable to varying attendant circumstances and the various instrumentalities involved in all cases. See generally Vol. 65 C.J.S., Negligence, Sec. 220(10), pages 1030-1032. Notice the factual situation alleged in Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575, where the automobile manufactured by defendant had been in plaintiff's possession for about two months and had been driven several hundred miles at the time, when driven by plaintiff, it was caused to veer...