Whitney v. Northwest Greyhound Lines, 9024

• Decision Date: 15 March 1952
• Docket Number: No. 9024,9024
• Parties: WHITNEY v. NORTHWEST GREYHOUND LINES, Inc.
• Court: Montana Supreme Court

Page 257

242 P.2d 257

125 Mont. 528

WHITNEY v. NORTHWEST GREYHOUND LINES, Inc.

No. 9024.

Supreme Court of Montana.

March 15, 1952.

Rehearing Denied April 9, 1952.

H. L. Maury, A. G. Shone, Butte, for appellant.

S. O. Meyer, William Meyer, Butte, for respondent.

ANGSTMAN, Justice.

This action is to recover damages alleged to have been sustained by plaintiff when riding in a bus operated by defendant and which overturned on highway No. 10 about eight miles west of Ellensburg, Washington, on January 13, 1949, en route from Seattle to Spokane. The complaint alleged that the bus driver while acting within the scope of his employment with defendant, 'so carelessly and negligently operated and drove said bus, that in attempting to pass a truck moving in the same direction as the bus, the said bus driver drove said bus so far to the left, and wrong side of said highway, that the said bus went off the said highway on the left side thereof, and turned over on its side,' causing the injuries to plaintiff complained. of. It was alleged that the bus was 'under the exclusive control, operation and management of the defendant.'

The answer was a general denial except that it admitted that the bus was under the exclusive control, operation and management of defendant. The answer contained an affirmative defense to the effect that the bus driver blew the horn on the bus as he attempted to pass the truck; that when he started to pass the truck it was on the right of the center line of the highway marked by a yellow line and there was then room on the left for the bus to pass, but that while attempting to pass the driver of the truck without warning swung the truck to the left and 'directly in the path of the bus; that in an attempt to keep said bus from being struck by said truck, the bus driver slowed down, and turned his bus to the left, but notwithstanding his efforts to avoid being struck by said truck, said bus was struck by said truck and was thereby crowded off the road onto the north side of said highway into a snow bank and turned partly over.' It also contained another affirmative defense which was abandoned at the trial.

The reply put in issue the affirmative allegations of the answer. The trial resulted in a verdict in favor of defendant. Plaintiff's motion for a new trial was denied and she has appealed from the judgment. Such portions of the evidence necessary to present the legal questions involved will be alluded to later.

Error is predicated upon instructions given over plaintiff's objection and in refusing some instructions offered by plaintiff. The principal legal question presented is whether the doctrine of res ipsa loquitur applies under facts and circumstances presented by the record, and if so, was the jury properly instructed on the subject. Interwoven with this general subject is the usual difference of opinion between counsel as to whether under that doctrine there is a shifting of the burden of proof. On that point the courts are in disagreement. Even this court has gone both ways on the question.

The early case of Ryan v. Gilmer, 2 Mont. 517, 25 Am.Rep. 744, held that when the doctrine applies it places the burden upon defendant of proving that there has been no negligence. This case was followed in Dempster v. Oregon Short Line R. R. Co., 37 Mont. 335, 96 P. 717, and in Callahan v. Chicago, B. & Q. R. R. Co., 47 Mont. 401, 133 P. 687, 47 L.R.A.,N.S., 587.

In the case of Vonault v. O'Rourke, 97 Mont. 92, 107, 33 P.2d 535, 541, this court said: "The doctrine of res ipsa loquitur does not cast upon the defendant the burden of disproving negligence in the sense of making it incumbent upon him to establish freedom from negligence by a preponderance of the evidence.' 20 R.C.L. 195 * * *. The doctrine does not alter the general rule that the burden is upon the plaintiff throughout the case to prove the negligence complained of.' This case was followed in Hickman v. First National Bank, 112 Mont. 398, 117 P.2d 275.

It is not necessary in this case to announce the correct rule since the court by instructions given without objection placed the burden of proof on plaintiff. Neither is it necessary to determine whether under the doctrine of res ipsa loquitur there arises a presumption of negligence on the part of defendant or only an inference. The terms are often used interchangeably by some courts.

The plaintiff's proof showed that she was a passenger for hire riding on the bus at the time it overturned. She occupied the seat directly behind the driver of the bus. Beside her sat Mr. Harold Oathes, the business agent for the motor employees' union. She observed the truck and trailer when the bus was one-eighth of a mile away. She observed the trailer swaying. She said that the bus driver was conversing with Mr. Oathes who had his head over the seat of the driver.

When the bus which was traveling about 50 miles per hour got to within 300 feet of the trailer the driver turned it to the left to pass the trailer, at the same time conversing with Mr. Oathes, and the left front wheel got caught in the snow bank, which pulled it off the road. The snow flew over the windshield so that nothing could be seen and the bus turned over.

The evidence of defendant was to the effect that the bus driver did not talk with Mr. Oathes while the bus was in motion; that the overturning of the bus was due to the following: That as the bus driver was in the act of passing the trailer and truck, the truck driver swung to the left so far as to cause the trailer to strike the bus and that to avoid injury to the passengers he turned so far to the left as to cause the bus to overturn. There was a conflict in the evidence as to whether there was a mark on the bus where the trailer is supposed to have struck it. Defendant produced witnesses who stated that there was a mark or indentation on the bus above the window near the rear wheel but that it was not sufficient to knock the bus off the highway. Plaintiff submitted proof to the effect that a witness was unable to find any such mark.

There is much discussion in the briefs as to the extent of plaintiff's injuries. With that question we are not now concerned except to say that the evidence showing the extent of the injuries is in sharp conflict and under well-settled rules solution of the question is for a jury under proper instructions.

The court gave to the jury the following instruction: 'You are instructed that the fact of injury, if any, to the plaintiff raises no presumption of negligence on the part of the defendant. You are instructed that the defendant is presumed to have fulfilled and performed all of the obligations and duties resting upon it, and before the plaintiff can recover in this action she must establish to your satisfaction, by a preponderance of all the evidence in the case, that the defendant herein was negligent in manner and form as specified in her said complaint, and that the said negligence of the defendant was the proximate cause of the injury to the plaintiff, if any, as 'proximate cause' is defined in these instructions.'

Plaintiff objected to the giving of the instruction as follows: 'As to that we object for in this particular case when the unusual turnover is proven and not disputed, the relation of carrier and passenger and the law relative thereto shifts the burden of proof to the defendant to show that it was not negligent, and that there is no duty remaining on the plaintiff to carry the burden further than the physical facts that are shown by the undisputed evidence and are admitted to have happened in this case. We have a further objection on the instruction on the ground that there is no presumption in this case that the defendant is presumed to have fulfilled and performed all the obligations and duties resting upon it.'

The res ipsa loquitur doctrine simply stated is this: That when an instrumentality which causes injury, without any fault of the injured person, is under the exclusive control of the defendant at the time of the injury, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, then the law infers negligence on the part of the one in control as the cause of the injury. The doctrine is especially applicable when there exists the relationship of passenger and carrier and applies to carriers by bus where injury results from overturning of the bus. 7 N.C.C.A. (n.s.), pp. 658, et seq.

The instruction above quoted is directly contrary to the res ipsa loquitur doctrine and hence constitutes reversible error unless for some reason the doctrine does not apply to this case. Defendant contends that it does not apply because plaintiff pleaded and proved specific acts of negligence and that the courts hold the doctrine does not apply under such circumstances. The courts are not in agreement as to what effect the pleading of specific acts of negligence has upon plaintiff's right to rely on the doctrine of res ipsa loquitur. 38 Am.Jur., Negligence, Sec. 305, p. 1001.

We agree with plaintiff that the allegations of negligence in this case are general and not specific. The case is very similar to that or Francisco v. Circle Tours Sightseeing Co., 125 Or. 80, 265 P. 801, 802. There the allegations were: 'That when said automobile was a few miles west of the 'Columbia Gorge Hotel' in said county, the defendant carelessly, negligently, and recklessly drove said automobile off the said highway and into a ditch which paralleled said highway, thereby causing the said automobile to be violenty tipped to its right side, all of which resulted in severe and permanent injuries to the plaintiff, the same being hereinafter more specifically set forth.' The court held that the doctrine had application.

To the same effect under similar allegations are: Vonault v. O'Rourke, supra, 97 Mont. 92, 33 P.2d 535; Jianou v. Pickwick Stages System, 111 Cal.App. 754, 296 P. 108;...