Wenzel v. St. Louis Public Service Co.

• Decision Date: 11 December 1950
• Docket Number: No. 1,No. 41825,41825,1
• Citation: 235 S.W.2d 312,361 Mo. 448
• Parties: WENZEL v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 312

235 S.W.2d 312

361 Mo. 448

WENZEL v.ST. LOUIS PUBLIC SERVICE CO.

No. 41825.

Supreme Court of Missouri, Division No. 1.

Dec. 11, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 8, 1951.

Coburn, Storckman & Croft, and Clem F. Storckman all of St. Louis, for appellant.

Everett Hullverson, St. Louis, Forrest Boecker, St. Louis, of counsel, for respondent.

VAN OSDOL, Commissioner.

Appeal from a judgment for $12,000 for personal injuries sustained by plaintiff when she was thrown from defendant's bus into the street just east of the intersection of Chippewa and Grand Boulevard in St. Louis.The jury by its verdict awarded plaintiff $17,500; however, the trial court required a remittitur of $5,500.

While minor questions are raised by defendant-appellant, the principal questions for consideration herein are--did the plaintiff plead, prove and submit a case to which the doctrine or res ipsa loquitur was applicable; and, if so, was the award of $12,000, after the remittitur, so manifestly excessive as to require further remittitur.

Plaintiff, respondent, at the time she was injured was 56 years old.She had lived apart from her husband for several years, and was employed in a dry-cleaning establishment situate at Indiana and Pestalozzi Streets in St. Louis.She had been in good health.She earned $55 per week, $1.25 per hour 'steady work,' as the 'main silk spetter' at her employer's plant.Her work 'means handling quite a bit of chemicals, understanding the materials, and knowing what you have to do not to damage' the fabrics. '--you stand all the time--.You have to handle quite a big load of work at one time and you have to carry it from this place to another place.'

Plaintiff resides at 3728 Keokuk Street, two blocks south of Chippewa.In going to her work, she custmarily rode a Chippewa bus to Jefferson Avenue, thence to near the place of her employment by Jefferson northbound streetcar.The morning she was injured, plaintiff boarded the crowded Chippewa bus at Spring Avenue.She stood by the right front seat behind the 'yellow line,' and faced the front of the bus.She held on to the rod of the right front seat with her right hand, holding her purse and lunch bag in her left.Her position was about one step from the steps leading down to the entrance-exit front doors of the bus.There was a man (Kenneth Scherer) standing slightly in front of her and to her left, behind the bus driver.

When the bus approached the west side of Grand Boulevard it was brought to a normal stop at the boulevard stop sign and proceeded into Grand.The bus checked somewhat in passing over the streetcar tracks, and, when the bus approached the stopping place on the east side of Grand, 'he came to an unusual, terrific stop which threw me forward and tore my grip loose, and out I flew.'The doors 'must have been open, because I went right out just that fast.'Plaintiff landed in the street on her hands and knees, sustaining serious injury.

Kenneth Scherer testified that something caused the bus to be 'checked sharply' in the middle of Grand Boulevard, then the bus 'started forward again violently, and in approaching the curb it was checked rather sharply, and the motion was sort of a back-and-forward deal--it wasn't the normal type of bus stop.'Anyone standing on a bus experiences swaying, but it was 'not a normal sway in this instance; I mean there is something you expect and, well, this exceeded expectations, let us say.--I watched this thing, and as she went out, as the doors opened, I noticed the scenery outside was still moving slightly.'

Plaintiff in her petition alleged 'the said bus suddenly and violently and in a very unusual manner jerked, jarred and jolted and the front door thereof was caused to be opened, directly thereby causing plaintiff to be thrown from the said bus--.'By InstructionNo. 1, the trial court submitted plaintiff's case on the theory of res ipsa loquitur, hypothesizing the occurrence--'said bus suddenly and violently and in a very unusual manner, jerked, jarred and jolted and the front door thereof was caused to be opened while the bus was in motion.'

Defendant-appellant contends that the instruction submitted general negligence by the hypothesis of a sudden and violent motion of the bus, and combined the submission of general negligence with a submission of specific negligence by hypothesizing 'and the front door thereof was caused to be opened while the bus was in motion'; that plaintiff was not entitled to submit her case under the res ipsa loquitur doctrine because she had undertaken to plead and prove specific negligence and the instruction submits, although defectively, specific negligence, and nevertheless permits an inference of negligence as in a res ipsa loquitur case; and that the instruction is erroneous as a submission of specific negligence because it fails to require a finding of a duty of defendant to keep the door closed in the circumstances.Furthermore, defendant-appellant says, no evidence supports the plaintiff's 'conclusion' that the bus came to an 'unusual, terrific stop.'

The evidence tends to show that, as the bus came into the passenger zone on the east side of Grand Boulevard, the bus sudenly and violently jerked and the bus doors were caused to be opened.When the doors opened the bus was yet in motion.The sudden and violent movement of the bus apparently threw plaintiff forward; and, having gripped the rod of the right bus seat with her right hand, plaintiff was pivoted to the right and toward the bus door with such force as to break her 'grip loose' and the unfortunate timeliness of the opening of the bus doors permitted plaintiff's 'flight' right on out into the street.Such an occurrence (or combination of occurrences)'speaks' of 'some kind of negligence' for which defendant should be held responsible.

As stated, the fact that the bus doors 'were caused to be opened' was alleged in plaintiff's petition, and the fact that the bus doors were caused to be opened 'while the bus was in motion' was hypothesized in the Instruction No. 1, supra.No direct evidence was introduced and there was no pleading and no submission of the specific act or omission which caused the bus to suddenly and violently jerk.And there was no direct evidence and no pleading and no submission that the bus driver opened the doors.Were the bus doors voluntarily opened by the bus driver, before the bus stopped, by the driver's premature manipulation of the device designed for opening the doors; or did the unusual movement of the bus cause the driver to come into inadvertent contact with the door-opening device so that the doors were opened before the bus stopped; or were the bus doors so mechanically defective that they were caused to be opened by the mere sudden and violent movement of the bus?It is true plaintiff's counsel in cross-examining defendant's bus driver brought out that 'you shouldn't open the doors before the bus stops'; and it should also be admitted that a bus should not ordinarily be brought to an 'unusual, terrific stop'; yet, the cause or causes of these events remained in doubt.It is a fact that the bus doors were caused to be opened while the bus was yet in motion, because plaintiff went out 'just that fast' and the bus was 'still moving slightly.'Plaintiff could and did only plead and submit such circumstances of the occurrence as she could and did demonstrate by evidence.Plaintiff did not see any 'levers or anything' that the bus driver manipulated when the bus was brought up with a 'terrific jerk' and 'the front door thereof was caused to be opened.'Plaintiff was not in a position to know, and the petition, the evidence and the instruction did not 'spell out' the specific fault or faults causing the occurrence and plaintiff's consequent injury.

It seems to us that it might be considered an allegation or proof of specific negligence if a bus driver were alleged or shown to have opened or permitted bus doors to have remained open, in some circumstances, while the bus was in motion.CompareMeyers v. Wells, Mo.Sup., 273 S.W. 110; and examine Simmons v. Wells, 323 Mo. 882, 20 S.W.2d 659.And it was an allegation of specific neglience to state that the 'agents and servants of the defendant in charge of and operating said car' negligently caused or permitted the streetcar to start while plaintiff was 'in the act of leaving said car and before plaintiff had stepped therefrom onto the street,' in the case of Lammert v. Wells, 321 Mo. 952, 13 S.W.2d 547, 548, cited by defendant-appellant.Likewise, there was a charge of specific negligence in stating 'defendant, its agents and servants then and there in control of said car' negligently caused the streetcar to move in an unusual manner, without any warning, 'while this plaintiff was in the act of alighting,' in the case of Duggan v. St. Louis Public Service Co., Mo.App., 56 S.W.2d 626, also cited by defendant-appelant.SeeBoulos v. Kansas City Public Service Co., 359 Mo. 763, 223 S.W.2d 446, wherein this court, in considering this very question, discussed the Lammert, Duggan and other cases.

The case of Stubblefield v. Federal Reserve Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718, cited by defendant-appellant, differs from our case.In the Stubblefield case, plaintiff alleged negligence in permitting a solid wooden wedge to fall from the cornice of a building then in process of repair, but further alleged and proved specific negligence, specific faults--omissions--failure to erect a covering, guard or barrier over the sidewalk to protect pedestrians from danger, and failure to warn of the attendant danger, that is, the danger to pedestrians on the sidewalk from the falling of repair materials and debris to be reasonably anticipated as incident to the work of repairing the building.The pleading and proof of the specific negligent omissions precluded plaintiff from relying...