A. M. POWELL v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant.
Division One, April 17, 1935.
81 S. W. (2d) 957
Shultz & Owen for respondent.
FERGUSON, C.—The defendant herein, St. Joseph Railway, Light, Heat & Power Company, operates passenger motorbus lines in the city of St. Joseph in connection with its transportation system in that city. Plaintiff was injured while a passenger on one of defendant‘s busses when the bus and a Ford automobile, driven by one Wallace, collided at or in the intersection of Twelfth and Francis streets. Plaintiff brought this action for damages for injuries sustained. Upon a trial in the Circuit Court of Buchanan County the verdict of the jury was for defendant, but the trial court sustained plaintiff‘s motion and granted a new trial on the ground, specified оf record, “that the court erred in giving Instruction D on behalf of defendant;” whereupon defendant appealed from the order granting a new trial and the amount of damages claimed and sued for being in excess of $7500 we have jurisdiction of the appeal.
Plaintiff‘s petition alleges that on the 7th day of October, 1930, she was a passenger upon defendant‘s bus, that there was a collision between the bus and another motor vehicle at the street intersection mentioned, supra, that she was injured and that the collision was caused by the “carelessness аnd negligence of the defendant, its servant and agent” and “the failure to exercise the highest degree of care,” in the operation of the bus whereby “said
Defendant says, however, that plaintiff‘s evidence, and all the evidence in the case, reviewed in the light most favorable to plaintiff clearly shows a precise, specific and definite negligent act of defendant‘s employee, the driver or operator of the bus, as the cause of the collision and therefore having, by her evidence, clearly shown the specific negligent act which caused the collision she was not entitled to rely upon presumptive negligence and have the case submitted to the jury under thе res ipsa loquitur rule, but the jury should have been limited and confined to a consideration and determination of the specific negligence thus shown by plaintiff‘s evidence and that the trial court properly gave defendant‘s Instruction D so confining the issue. As stated the trial court sustained plaintiff‘s motion and granted a new trial on the ground that it erred in giving that instruction at defendant‘s request. The propriety of the instruction is the question here and necessitates a statement of the evidence most favorable to plaintiff.
Francis Street runs east and west and is 26.6 feet wide from curb to curb. Francis Street is intersected by Twelfth Street which runs north and south and is 35.6 feet wide, from curb to curb, at the intersection. It is 260.5 feet from the south curb of Francis Street to the north curb of Felix Street, the first east and west street south of Francis Street, which street also crosses or intersects Twelfth Street at that point. There is an alley midway of the block between Francis and Felix streets. The bus on which plaintiff was a passenger was traveling east on Francis Street. The Ford automobile which collided with the bus was traveling north on Twelfth Street. It was a 1922 model Ford touring car driven by a yоung man named Wallace. Two other young men (Gatewood and Townsend) were seated with Wallace in the front seat. The evidence tends to show that the young men were intoxicated. Wallace was
When, proceeding east on Francis Street through the intersection, the front end of the bus was out of the intersectiоn and six feet east of the east curb line of Twelfth Street the Ford automobile traveling north on Twelfth Street crashed into the right side of the bus “back of the front door.” All the evidence in the case, except the testimony of the plaintiff, was that when the bus entered the intersection the Ford automobile was yet at, south of or about Felix Street, the first east and west street south of Francis Street, mentioned, supra, and therefore at the time a block or more away. Plaintiff however testified that at the time the bus entered the intersection the Ford was a half bloсk south of the intersection, or at about the alley midway of the block between Francis and Felix streets. With these preliminary glimpses we now refer to plaintiff‘s positive and direct testimony concerning the occurrence and the surrounding circumstances. Plaintiff was the only eyewitness to testify in her behalf. She stated that she was seated in the front seat on the right hand side of the bus as it traveled east; that as the bus approached the intersection it “slowed up” and then as it entered the intersection “speeded up very fast;” that as the bus entered the interseсtion she saw the Ford automobile and it was then “at the alley a half block south of Francis Street” and “I noticed it was coming down very fast” (north on Twelfth Street); “the bus was going very fast;” “I didn‘t think we were in any danger” and “had no thought of a collision;” that “from the time I first saw this Ford automobile half a block away I continued to watch it come on down;” “it didn‘t appear there was any danger of a collision;” that when the Ford automobile was “about 25 feet” away “the bus stopped right in front of the Ford;” “the bus seemed to be standing perfectly still;” “I stood up and looked to see why the bus driver wаs stopping with those boys in the street so close to the bus;” that “the bus driver was standing up;” “I knew we were going to be struck when I stood up” and “just then we were hit;” that “the way I saw it the accident would not have occurred if the bus had continued on across and had not stopped there; if it hadn‘t stoрped we would have gone on by . . . the bus would have been clear out of the street (the intersection) if
The res ipsa loquitur doctrine generally applies in actions by a passenger against a carrier for damages for рersonal injuries. The rule is to the effect that, where the thing or instrumentality which causes the injury complained of is shown to be under the exclusive management and control of the defendant and his servants, and the character of the accident is such as to warrant an inferencе or strong probability of negligence on the part of the defendant, that is such as in the ordinary and normal condition of things would not happen if those who have the management and control of such instrumentality use proper care, then the accident itself, and its attendant сircumstances, afford reasonable evidence from which the
Thus the res ipsa loquitur rule aids the injured party who does nоt know and therefore cannot plead or adduce proof showing the specific cause of or how the event which resulted in his injury occurred but if he knows how it came to happen, and just what caused it, and either specifically pleads or proves the causе there is neither room nor necessity for the presumption or inference which the rule affords. [Smith v. Creve Coeur Drayage & Motorbus Company, 220 Mo. App. 1122, 296 S. W. 457.] However, when, as in the instant case, the plaintiff pleads general negligence and by the pleading invokes the aid of the res ipsa loquitur doctrine, he does not lose or waive the benefit thereof, and the right to rely thereon in the submission of the case to the jury, by introducing evidence tending to show specifically the cause of the accident if by the evidence the cause is still left and remains in doubt or is not clearly shown, but where the real or precise cause is definitely shown, and is not left in doubt, “there is no occasion or room for the” presumption or inference which the res ipsa rule affords. “The plaintiff is bound by his evidence in a res ipsa case just as he would be in any ordinary negligence action and cannot in effect say to the jury, ‘I have shown you exactly how the accident occurred but you are, nevertheless, still at liberty to speculate and presume it may have happened some other way.‘” [Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S. W. (2d) 21, and cases there collected and cited.]
In Glasco Electric Co. v. Union Electric Light & Power Co., 332 Mo. 1079, 61 S. W. (2d) 955, we said: “Though the petition charges general negligence only yet if plaintiff‘s proоf clearly shows the precise or specific negligent acts or omissions on the part of defendant which caused the injury ‘there is no occasion or room for the application of a presumption.’ [Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S. W. (2d) 21.] ‘The real cause being shown, there is no occasion tо inquire as to what the presumption would have been if it had not been shown.’ [Price v. Metropolitan Street Railway Co., supra.]”
In the instant case, if accepted, plaintiff‘s proof directly and definitely shows and establishes the precise and specific negligent act which caused the collision, that is, that the driver brought the bus to a stоp in the intersection immediately in the path, or in front, of the northbound Ford automobile. Plaintiff‘s evidence did not leave the cause of the collision in doubt but clearly and specifically fixed the precise cause thereof. Nor does the record disclose any substantiаl evidence warranting an inference of negligence on the part of defendant other than the specific negligent act shown and relied upon by plaintiff in her proof. In this situation the court gave
The order of the trial court granting a new triаl is therefore reversed and the cause remanded with directions to set aside the order, reinstate the verdict and enter judgment for defendant thereon.
Sturgis and Hyde, CC., concur.
PER CURIAM:—The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.
HENRY KRAMER, Appellant, v. GRAND NATIONAL BANK OF ST. LOUIS, a Corporation.
Division One, April 17, 1935.
81 S. W. (2d) 961