Wells v. Asher, 7448
| Citation | 286 S.W.2d 567 |
| Decision Date | 29 December 1955 |
| Docket Number | No. 7448,7448 |
| Parties | Jeanette WELLS, Plaintiff-Respondent, v. Geraldine ASHER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Burden & Shortridge, Joplin, for defendant-appellant.
Dalton DeShazer, Joplin, for plaintiff-respondent.
In this jury-tried suit, defendant appeals from the judgment for $1,085 obtained by plaintiff for damage to her six-room modern frame rental house at 3305 East 13th Street in Joplin, Missouri, resulting when a west-bound Buick automobile driven by defendant left the paved roadway, crossed a shallow drainage ditch some twelve to eighteen inches in depth on the right-hand or north side of the road, traveled 'half a block' through the wide yard of the Klimpt home just east of plaintiff's property, ran over a sapling in the Klimpt yard and through a four-foot or five-foot woven wire line fence, tore down two eight-inch concrete pillars on the east side of a ground-level porch on plaintiff's house some twelve to fourteen feet north of the roadway, went completely through the east wall of a bedroom and, having demolished the furniture in that room, came to a stop partially through the west wall of the room. The accident occurred about 1:00 p. m. on October 7, 1953. It was a clear day, the roadway was dry and unobstructed, and there is no suggestion that any other vehicle contributed to cause the occurrence.
On this state of facts, it would seem that plaintiff clearly would be entitled to rely (as she did) upon the res ipsa loquitur doctrine, for we find repeated holdings, either expressly or in effect, that the unusual movement of a motor vehicle in running off a highway ordinarily will justify invocation of that doctrine. 1 However, emphasizing the established principle that, where plaintiff's own evidence points out and reveals the specific act of negligence causing the injury or damage complained of, recovery may not be had on the res ipsa loquitur doctrine, 2 defendant asserts that the instant case was submitted erroneously on that doctrine by plaintiff's verdict-directing instruction 1 'for the reason that plaintiff explained by her evidence just how the accident happened.'
Elmer Junior Davis, a witness for plaintiff living on the south side of 13th Street 'cater-cornered' across the street from (and thus southeast of) plaintiff's house and directly opposite the Klimpt home, was entering an automobile in his driveway preparing to return to work after lunch, when he 'heard a noise, looked up and saw' defendant's automobile. Apparently because Davis testified that 'I didn't see nobody in the car' and conceded that it 'just looked like a driverless car,' able and ingenious counsel for defendant insist that 'the evidence construed in the light most favorable to the plaintiff can lead to only two possible conclusions,' i. e., either 'that the defendant voluntarily relinquished control of the wheel of her car' or 'that defendant lost control of the car through no fault of her own.' Defendant's counsel argue that, if from Davis' testimony 'the inference is drawn that the defendant voluntarily leaned over to pick up something from the floor of the car or for some other reason voluntarily relinquished control of the wheel, the plaintiff by her own evidence has shown specific negligence, that is, she has proved just why the accident occurred,' and thus was not entitled to a res ipsa submission.
Although we recognize the general rule that a plaintiff is bound by his or her evidence in a res ipsa case as in an ordinary negligence action [Williams v. St. Louis Public Service Co., 363 Mo. 625, 253 S.W.2d 97, 100-101(3); Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21, 25(5)], we are by no means satisfied that the testimony of witness Davis, fairly considered as a whole, would justify a finding that defendant, alone in her automobile, was in such position as to demonstrate that she had 'voluntarily relinquished control of the wheel.' Even though Davis thought that defendant's automobile was traveling 'not too awful fast' (no speed in miles per hour was estimated in plaintiff's case), it is apparent that his view of the automobile was a fleeting one, for, when asked on cross-examination whether 'it looked like an empty car,' he replied 'the best I remember, it happened so fast,' and he summed up his testimony by stating that 'all I know, I looked up at the car, seen the car and I went down there' to plaintiff's house. Furthermore, defendant's automobile ran diagonally across a drainage ditch some twelve to eighteen inches deep, leaving tracks which, as the investigating police officer (a witness for plaintiff) said, showed 'some deviation from a straight line as they passed across the ditch'; and, although the sides of the ditch had 'a gradual slope,' the jury reasonably might have inferred from the evidence that, as the automobile crossed this ditch immediately before witness Davis looked (as we shall note shortly), defendant might have been thrown from her normal or customary position under the steering wheel into some position which would have made it more difficult or impossible for Davis to have seen her.
But, for even more compelling reasons, we are convinced that plaintiff was not precluded from a res ipsa submission. Factually, defendant's assertion that plaintiff 'has proved just why the accident occurred' is not supported by the transcript before us. For, this contention is bottomed on a loose and inaccurate reference to witness Davis as 'the only eyewitness who saw (defendant's) automobile leave the road,' whereas the record shows that on direct examination Davis testified that he 'heard a noise, looked up and saw a car going into the (Klimpt) yard across the street,' that in the first question on cross-examination defendant's counsel elicited an affirmative answer to the question, 'you say you saw this car going through the yard,' and that on redirect examination Davis said that 'all I seen was the car as it was going across the yard.' Thus, again fairly considered as a whole, the testimony of witness Davis demonstrates that he did not see defendant's automobile at or prior to the time it left the paved roadway, and that he thus was not qualified to say, and did not undertake to say, what had caused defendant's automobile to leave the road and start on its off-the-highway course, some two hundred fifty feet in length, which terminated in the bedroom of plaintiff's home. In short, we cannot find from the testimony of witness Davis (nor from anything in plaintiff's case) 'just why the accident occurred.'
Legally, defendant's argument that plaintiff was precluded from a res ipsa submission by proof of specific negligence is, under the facts of the instant case, utterly self-destructive. For, it is firmly-established in this jurisdiction that, 'even though the plaintiff's evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the doctrine, nor be deprived of the right to rely upon it in the submission of his case, if, after his evidence is in, 'the true cause is still left in doubt or is not clearly shown.'' 3 Defendant's contention in the case at bar is not that plaintiff's evidence definitely showed the precise cause of the occurrence under consideration, but rather that such evidence 'can lead to only two possible conclusions,' i. e., either that defendant 'voluntarily relinquished control' or that she 'lost control * * * through no fault of her own.' Defendant thus conceding that plaintiff's evidence afforded a basis for different conclusions, the cause of accident obviously remained in doubt at the close of plaintiff's case and she did not lose her right to rely on the res ipsa loquitur doctrine. Williams v. St. Louis Public Service Co., supra, 253 S.W.2d loc. cit. 100-102; Grace v. St. Louis Public Service Co., Mo.App., 263 S.W.2d 866, 870. Plaintiff's verdict-directing instruction 1 is not vulnerable to the only attack made upon it, namely, that plaintiff was precluded from a res ipsa submission because she 'explained by her...
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