Williams v. St. Louis Public Service Co.

• Decision Date: 15 January 1952
• Docket Number: No. 28189,28189
• Citation: 245 S.W.2d 659
• Parties: WILLIAMS v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 659

245 S.W.2d 659

WILLIAMS v. ST. LOUIS PUBLIC SERVICE CO.

No. 28189.

St. Louis Court of Appeals, Missouri.

Jan. 15, 1952.

Motion for Rehearing Denied Feb. 15, 1952.

Transferred to Supreme Court April 14, 1952.

Salkey & Jones, and Carroll J. Donohue, all of St. Louis, for appellant.

Barnhart & Wood, C. V. Barnhart, and Marvin S. Wood, all of St. Louis, for respondent.

ANDERSON, Judge.

This is an action by Annie Williams, as plaintiff, against the defendant, St. Louis Public Service Company, to recover damages for personal injuries alleged to have been sustained by plaintiff on February 10, 1950, while a passenger on one of defendant's streetcars. The trial below resulted in a verdict and judgment for plaintiff in the sum of $4,950. From this judgment, defendant has appealed.

The case was pleaded and submitted on the theory of res ipsa loquitur, the petition alleging that while plaintiff was walking to the rear of the car after having paid her fare, 'defendant negligently caused and permitted said streetcar to suddenly check its speed and to receive an extraordinary, unusual jerk, lurch and shock, whereby plaintiff was caused to be thrown to the floor thereof with much force and violence * * *.'

In this court, defendant complains of the trial court's action in giving plaintiff's Instruction No. 1. By said instruction the case was submitted to the jury on the res ipsa loquitur doctrine. The basis of defendant's complaint against said instruction is that, since plaintiff's evidence disclosed the specific cause of the accident, plaintiff was not entitled to go to the jury on the doctrine of res ipsa loquitur.

Plaintiff testified:

'* * * I got on the car and I paid my fare and started back to take a seat. On my way back, when the car started up and by the time I got middleways between the front door and the exit door, all of a sudden the car gave a jerk and it jerked me back and it threw me flat out on my arm * * *.

'Q. Did you fall backwards or forwards? A. Forwards.

'Q. Did one of your arms strike the floor? A. Yes. * * * I just fell flat out on the floor in the aisle.

'Q. You were walking at the time that happened? A. Yes, sir.

'Q. And the streetcar was in motion at that time? A. It was. * * *

'Q. You don't know what the traffic conditions were outside, or anything about that? A. No, I wasn't looking at that. I was trying to walk back to take a seat.

* * *

* * *

'Q. As I understand it, there was a jerk. Is that right? A. Yes.

'Q. What kind of a jerk was that, Mrs. Williams? A. Just a hard jerk; throwed me out of balance, off my feet. * * * The way I noticed it, it seemed to slow and give a sudden jerk.'

Jean Cobble, who was a passenger on the streetcar and witnessed plaintiff's accident, testified for plaintiff as follows:

'Q. Where abouts did you sit on the streetcar? A. On the lefthand side about the center of the car.

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'Q. Did you see anything unusual occur on that streetcar about the time it left the Horton Place stop? A. Well, I looked down and there was a colored woman--I didn't see her fall, but her arm was still in motion. I mean I saw her arm before it stopped moving. Her arm was outstretched. * * * Well, her arm was right in front of me.

'Q. Did you notice anything about the movement or the motion of the streetcar at about that same time? A. Yes, there was a slight jerk.

'The Court: How is that?

'The Witness: There was a jerk.'

On cross-examination this witness testified:

'* * * He already started up and then she paid her fare. We had started up and she put her money in her purse, and then she started to walk on back and then I looked away; * * *

'Q. It was after that that she fell? A. She fell just then, because I looked back in a second and she was throwed off her feet.

* * *

* * *

'Q. Had you ever been on a streetcar that moved like that before? A. Yes.

'Q. Does it happen quite often on that Hodiamont streetcar line over there? A. Well, I wouldn't say quite often; occasionally, it does.

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'Q. * * * As that streetcar was proceeding along after this lady got on, did it run along that track there just as it usually does every day? Was there anything different in the manner in which that streetcar moved on this particular day than there was on the other days you ride? A. Not especially.'

On re-cross examination the witness testified:

'Q. * * * Did you tell the police officers that the streetcar jerked because you couldn't see any other reason why she fell? Was that the basis for saying that? A. No, that wasn't it exactly. I will tell you about that jerk. It wasn't like this: We were just going along and the streetcar gave a sudden jerk; * * * We were going across, what street I don't remember, and he put on the brakes--anyhow, he started slowing down for this street, because there was a car coming from the left side. He put on his brakes and he didn't totally stop, and then he went on again rather fast.

'Q. In other words, this jerk that you noticed took place at some intersection, is that right, an intersection with another street? A. It started, yes.

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* * *

'Q. You say he put on the brakes and slowed the streetcar down a little bit but did not completely stop. You say that was for an automobile? A. Yes.

* * *

* * *

'Q. This was an automobile, wasn't it, that passed in front of the streetcar? A. Yes.

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* * *

'Q. * * * Did it happen where a street crosses? A. Sort of an alley; I don't know the name of it. * * *

'Q. How close in front of the streetcar was that automobile? A. Well, just in front of it; I don't know. * * * it was close enough that there would be a question whether the streetcar should go on or the automobile should go on.

'Q. The streetcar stopped and let the automobile go on? A. He didn't stop.

'Q. He slowed down to let the automobile go on? A. Well, the lady goes and gets on and he starts up and then we come to this street and he sort of slows down. That was normal. And then as soon as the automobile went on he speeded up.

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'Q. You have been on streetcars before that stopped with automobiles going in front of it? A. Naturally, yes.

'Q. * * * this movement you described of the streetcar, happens quite often? A. I wouldn't say it is exactly the same.

'Q. * * * have you felt the same motion on a streetcar before or since this happened, slowing down and starting up again? A. Well, this was a little more, just a little more heavy than usual; a little faster--quicker.

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'Q. One further question: I believe you said when the streetcar was slowing down at that point, then it started forward and that is when the jerk occurred? A. Yes, sir.'

There can be no question but that the testimony of plaintiff, standing alone, made out a case for the application of the res ipsa loquitur doctrine. Appellant does not contend otherwise, but urges that, by the testimony of Jean Cobble, plaintiff made out a prima facie case of specific negligence which had the effect of depriving plaintiff of the right to have the case submitted to the jury under the res ipsa loquitur theory.

The principle of law relied on by appellant is well established. The doctrine of res ipsa loquitur, being a rule of necessity, cannot be invoked where a plaintiff presents substantial evidence of specific acts of negligence as the cause of the injury about which complaint is made. McAnany v. Shipley, 189 Mo.App. 396, 176 S.W. 1079; Cook v. Union Electric Light & Power Co., Mo.App., 232 S.W. 248; Grimes v. Red Line Service, 337 Mo. 743, 85 S.W.2d 767; Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825; Powell v. St. Joseph Ry. Light, Heat & Power Co., 336 Mo. 1016, 81 S.W.2d 957; Lochmoeller v. Kiel, Mo.App., 137 S.W.2d 625; Heidt v. People's Motorbus Co., 219 Mo.App. 683, 284 S.W. 840; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Duncker v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 64; Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599. And while it is true that under the decisions the benefit of the res ipsa loquitur doctrine will not be lost if, after plaintiff's evidence is received, the precise cause of the accident remains in doubt or is not clearly shown, such qualification is satisfied if the inference of specific negligence to be drawn from plaintiff's evidence is a reasonable one, sufficient to establish a prima facie case. Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599; Hill v. St. Louis Public Service Co., 359 Mo. 220, 221 S.W.2d 130.

Did plaintiff make a case of specific negligence by the testimony of Jean Cobble?

It appears from the testimony of Mrs. Cobble that she was a passenger on the streetcar at the time plaintiff boarded it at Horton Place. Mrs. Cobble sat on the lefthand side at about the center of the streetcar. She stated that after plaintiff entered, the streetcar started forward; that plaintiff then paid her fare, and started to walk toward the rear of the car. Mrs. Cobble did not observe plaintiff thereafter until after plaintiff fell. Plaintiff fell when she came opposite the seat in which Mrs. Cobble was sitting.

It further appears from Mrs. Cobble's testimony that as plaintiff proceeded down the aisle the streetcar approached and entered an intersecting street or alley, at which time an automobile passed from left to right in front of the streetcar. Mrs. Cobble stated that the automobile, as it passed in front of the streetcar, 'was close enough that there would be a question whether the streetcar should go on or the automobile should go on.' In order to avoid colliding with the automobile defendant 'put on the brakes, started slowing down * * * because there was a car coming from the left side. He put on his brakes and he didn't totally stop, and then he went on again rather fast.' That there was no jerk or unusual movement of the streetcar as a result of the application of the brakes is clear from Mrs....