Welch v. Thompson, 40373.

CourtUnited States State Supreme Court of Missouri
Citation210 S.W.2d 79
Docket NumberNo. 40373.,40373.
PartiesVIOLA WELCH v. GUY A. THOMPSON, Trustee of the MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
Decision Date08 March 1948
210 S.W.2d 79
VIOLA WELCH
v.
GUY A. THOMPSON, Trustee of the MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
No. 40373.
Supreme Court of Missouri.
Division One, March 8, 1948.
Rehearing Denied, April 12, 1948.

[210 S.W.2d 81]

Appeal from Circuit Court of City of St. Louis. — Hon. William B. Flynn, Judge

AFFIRMED.

Thomas J. Cole, Oliver L. Salter and Ragland, Otto, Potter & Embry for appellant.

(1) The amended petition fails to state a claim on which relief could be granted. Langenberg v. St. Louis, 197 S.W. (2d) 621; Kramer v. Kansas City P. & L. Co., 311 Mo. 369, 279 S.W. 43; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388; James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W. (2d) 118; Thompson v. Farmers Exchange Bank, 333 Mo. 437, 62 S.W. (2d) 803. (2) The petition does not state a claim under the res ipsa loquitur doctrine. McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Sleater v. John R. Thompson Co., 173 S.W. (2d) 591; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104. (3) Accidents arising from abnormal conditions "in the department of actual transportation" comprehend questions arising only from unsafe roadbeds, defective machinery, imperfect cars and clearly kindred matters. 13 C.J.S. 1260, sec. 678(b); Morris v. N.Y. Central & H.R.R. Co., 13 N.E. 455; Whiting v. N.Y. Central & H.R.R. Co., 89 N.Y. Supp. 584; 10 Am. Jur. 366, sec. 1623; Klebe v. Distilling Co., 207 Mo. 480. (4) 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 possessed superior knowledge or means of information as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 46 S.W. (2d) 557, 559; Charlton v. Lovelace, 351 Mo. 364, 173 S.W. (2d) 13. (5) To make a res ipsa loquitur case, each of the foregoing elements must exist and be present, in pleading as well as in proof. Brown v. St. Louis County Gas Co., 131 S.W. (2d) 354; Harke v. Haase, 335 Mo. 1104, 75 S.W. (2d) 1001; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W. (2d) 575. (6) To come within that first definitive element of the doctrine, the petition would have to allege a situation from which the court must be able to take judicial notice, as a matter of common knowledge and experience, that the alleged accident, prima facie, would not have occurred but for negligence on the part of the defendant. It does not do so and, therefore, is insufficient to plead a res ipsa loquitur case. Charlton v. Lovelace, 351 Mo. 364, 173 S.W. (2d) 13; Kapros v. Pierce Oil Corp., 324 Mo. 992, 254 S.W. (2d) 777; Sleater v. John R. Thompson Co., 173 S.W. (2d) 591; Gillick v. D.L. & W.R. Co., 145 N.Y. Supp. 45. (7) This court takes judicial notice of matters of common knowledge and experience, including the conditions prevailing in the operation of well recognized business and other activities. Davidson v. Mo. Orpheum Corp., 236 Mo. App. 1025, 161 S.W. (2d) 707; State ex rel. City of St. Louis v. Public Serv. Comm., 341 Mo. 920, 110 S.W. (2d) 749; State ex rel. General Mills v. Waltner, 348 Mo. 852, 156 S.W. (2d) 664; Rickey v. N.Y. Life Ins. Co., 229 Mo. App. 1226, 71 S.W. (2d) 88. (8) The appellant was under a duty to exercise only the utmost "practicable" care — that is, the highest degree of care "consistent with the business." Case v. St. Louis Pub. Serv. Co., 192 S.W. (2d) 595; Liljegren v. United Rys., 227 S.W. 925. (9) Further as to said first definitive element of res ipsa loquitur doctrine, the petition fails to state a cause of action because: the allegations thereof do not reasonably exclude all defensive inferences attributable to negligence on the part of the plaintiff, or on the part of another for whose act the defendant would not be held liable. Charlton v. Lovelace, 351 Mo. 364, 173 S.W. (2d) 13; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W. (2d) 575; Sleater v. John R. Thompson Co., 173 S.W. (2d) 591; Hart v. Emery, Bird, Thayer D.G. Co., 233 Mo. App. 312, 118 S.W. (2d) 509. (10) It does allege that there was no "action or interference" on plaintiff's part but does not plead a freedom from negligence on her part such as that, by casual observation, she might have discovered that she was seated under a suitcase which was obviously about ready to fall. This is not a particular dealing with contradictory negligence, which it would be incumbent on appellant to plead and prove. It is a particular as to which plaintiff must make an affirmative showing — and would, therefore, have to plead — to bring herself within the doctrine, if otherwise within it. Carlson v. K.C. Clay County & St. J. Auto Transit Co., 221 Mo. App. 537, 282 S.W. 1037; Charlton v. Lovelace, 351 Mo. 364, 173 S.W. (2d) 13. (11) The allegations of the petition plead a state of affairs where inferences could as reasonably be drawn that the alleged accident was due to a cause or causes other than negligence of the defendant. Charlton v. Lovelace, supra; Removich v. Bambrick Bros. Const. Co., supra; McGrath v. St. Louis Transit Co., supra; Gibbs v. General Motors Corp., supra; Sleater v. John R. Thompson Co., supra; Hart v. Emery, Bird, Thayer D.G. Co., supra; State ex rel. v. Shelton, 249 Mo. 660; Krause v. Pitcairn, 167 S.W. (2d) 74; Byers v. Essex Investment Co., 281 Mo. 375. (12) The court should take judicial notice that a carrier does not have such possession of, or control over, such articles (a falling suitcase) as is required to make a res ipsa case; and that therefore, a res ipsa case cannot be stated on the conditions sought to be set up in the petition. Morgain v. Y. & M.V.R.R. Co., 172 S.W. (2d) 1013; Briganti v. Conn. Co., 175 Atl. 679; Jackson v. Commonwealth, 220 S.W. 743; Murphy v. Boston Elevated Ry. Co., 118 N.E. 191; Morris v. N.Y. Cent. & H.R.R. Co., 13 N.E. 455; Chadwick v. L. & N.R. Co., 281 S.W. 1018; Saunders v. N. & W. Ry. Co., 117 S.E. 4. (13) As to the third definitive element, the petition fails to state a case under the res ipsa loquitur doctrine because there is no allegation that the defendant had superior knowledge of means of information as to the cause of the alleged occurrence or knowledge or means of information, as to the cause of the alleged occurrence, at least equal, if not superior, to those of the appellant. This element is the sole justification for the res ipsa doctrine and, without pleading it, no case is stated. Porter v. St. J. Ry. Light, H. & P. Co., 311 Mo. 66, 277 S.W. 913; Terminal Ry. Assn. v. Staengel, 122 Fed. (2d) 271; Sleater v. John R. Thompson Co., supra. (14) By the phraseology of respondent's Instruction 1, viz., "are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent, and you may so find," she typed her action as res ipsa loquitur or nothing — and thereby abandoned any other theory. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W. (2d) 593; Hughes v. East St. Louis City Lines, 149 S.W. (2d) 440. (15) Respondent having undertaken only such a submission, and thereby abandoned all other possible theories, if any, the sufficiency of the evidence to make a case must be judged by the sufficiency thereof to make a res ipsa loquitur case. Yuronis v. Wells, 322 Mo. 1039, 17 S.W. (2d) 518; Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W. (2d) 594. (16) Respondent's own evidence was to the effect that the coach gave an unusually violent sidewise lurch and that at that same instant a suitcase fell from above and struck her on the head. To permit a coach to give a violent and unusual sidewise lurch is specific actionable negligence. Laible v. Wells, 317 Mo. 141, 296 S.W. 428; Laycock v. United Rys. Co., 227 S.W. 883; Laycock v. United Rys., 290 Mo. 344, 235 S.W. 91. (17) Respondent herself, having given such evidence of specific negligence, by so doing destroyed her case as a res ipsa case, even if otherwise it would have been one. There is no res ipsa loquitur case where the plaintiff offers evidence of the specific negligence allegedly causing an accident. Powell v. St. Joseph Ry., Heat, L. & P. Co., 336 Mo. 1016, 81 S.W. (2d) 957; Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W. (2d) 21; Whitaker v. Pitcairn, 351 Mo. 848, 174 S.W. (2d) 163; Taylor v. Prudential Ins. Co., 234 Mo. App. 317, 131 S.W. (2d) 226; Stubblefield v. Federal Reserve Bank, 204 S.W. (2d) 719. (18) Aside from the foregoing, however, the evidence was insufficient to make a submissible res ipsa loquitur case. McCloskey v. Koplar, 329 Mo. 527, 46 S.W. (2d) 557; Charlton v. Lovelace, 351 Mo. 364, 173 S.W. (2d) 13; Brown v. St. Louis County Gas Co., 131 S.W. (2d) 354; Harke v. Haase, 335 Mo. 1104, 75 S.W. (2d) 1001; Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W. (2d) 575. (19) The evidence on the part of the respondent was to the effect that she was injured by a suitcase falling from above and striking her on the head. Such an occurrence, if any, does not come within "the department of actual transportation" because accidents arising from abnormal conditions in "the department of actual transportation" comprehend questions arising only from unsafe roadbeds, defective machinery, imperfect cars, and clearly kindred matters; 13 C.J.S., 1260, sec. 678 (b); Morris v. N.Y. Central & H.R.R. Co., 13 N.E. 455; Whiting v. N.Y. Central & H.R. Co., 89 N.Y. Supp. 584; 10 Am. Jur., 366, sec. 1623; (20) The res ipsa loquitur doctrine is applied in passenger carrier cases just as it is in other cases unless the accident arises in "the department of actual transportation." McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Sleater v. John R. Thompson Co., 173 S.W. (2d) 591; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104. (21) To come...

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