69 S.W.2d 649 | Mo. | 1934
Lead Opinion
Action for damages for personal injuries. Defendant owned and operated motor busses as a common carrier of passengers for hire, in St. Louis County, under the name of "Webster-Kirkwood Bus Line" and "De Luxe Bus Line." Plaintiff was injured on August 27, 1929, while a passenger on one of defendant's busses when, as plaintiff's petition alleges and proof shows, "one of the rear wheels of the said motor bus was broken off and detached therefrom and one corner of the said motor bus was let down violently upon the ground, causing plaintiff to be thrown against the floor and seats" inflicting the injuries complained of. Damages in the sum of $25,000 are asked. The answer was a general denial. The petition invokes the res ipsa loquitur doctrine and concededly under the petition and evidence on the part of the plaintiff that doctrine applies. It is a typical res ipsa case. The plaintiff did not offer or request any instructions except one on the measure of damages which was given. Four instructions, numbered 2, 3, 4, and 5, requested by defendant, were given. The verdict of the jury was for defendant but the court sustained plaintiff's motion for, and granted, a new trial, the sole ground therefor specified of record being that error was committed in the giving of instruction numbered 2 at the request of the defendant. Said instruction is as follows:
[1] "The Court instructs the jury that although you believe and find from the evidence that the plaintiff in this case was injured, this fact alone, regardless of how serious such injuries to her person may be, will not warrant you in finding in favor of the plaintiff for any sum unless you further find and believe from the evidence that the defendant was negligent and that such negligence, if any, was the proximate cause of such injury, if any."
The defendant appealed from the order granting a new trial and contends here that the court erred in granting a new trial on the ground assigned.
As the instruction states the fact that plaintiff sustained injuries to her person in itself and alone did not warrant the jury "in finding in favor of the plaintiff;" but a verdict for plaintiff required that the jury not only find from the evidence that she sustained an injury but also that the defendant was in some way negligent and that such negligence was the proximate cause of the injury. The defendant was not liable as an insurer but only for failure to exercise the proper care in the inspection, maintenance and operation of his bus. Plaintiff did not see fit to offer or request any instructions defining her theory or advising what finding by the jury would warrant a verdict in her favor and so far as the plaintiff was concerned the jury were left without any guidance whatsoever. In the absence of any direction from the court as to the law governing defendant's liability, *954
if any, and how same should be determined or arrived at the jury might have supposed or conceived the theory that defendant was liable as an insurer and that regardless of whether the defendant was in some way negligent and such negligence the proximate cause of the injury the fact alone that plaintiff sustained an injury while a passenger on defendant's bus made defendant liable. Under these circumstances it was not amiss for the court, upon defendant's request, to advise the jury that defendant should not be held liable unless the jury believed, from the evidence, that he was in some manner negligent and that such negligence was the proximate cause of plaintiff's injury. The instruction in question does not touch or infringe upon the right of the jury in arriving at a verdict to weigh the inference of negligence arising from the occurrence and the evidence offered by defendant to explain the accident, but merely tells the jury that they must find and believe from the evidence that defendant's negligence was the proximate cause of plaintiff's injury. It was plaintiff's right in the first instance to submit clear, full and explicit instructions setting forth the matters which the jury might properly consider and the scope, extent and legal effect thereof but she elected not to do so and is not in a position to complain that defendant did not do so for her. Having neglected to offer instructions outlining her right to recover under the res ipsaloquitur doctrine, plaintiff cannot complain that defendant's instructions did not do so. The principal argument respondent makes, in her brief, against the instruction is that it denies plaintiff the benefit of "the presumption of negligence arising from the happening of the extraordinary event detailed in evidence" citing and quoting from our decision in Glasco Electric Co. v. Union Electric Light Power Co.,
"With the view we have of this case, we think the trial court erred in giving instruction numbered 4, offered by defendant, as follows: `The court instructs the jury that even though you find and believe from the evidence that plaintiff suffered damage by reason of a fire caused by the emission or escape of electric current, sparks, fire or flame from electrical apparatus owned and exclusively controlled and maintained by defendant, yet those facts alone are not sufficient to warrant you in returning a verdict for plaintiff in this case. Unless you also find and believe from the evidence that defendant was guilty of negligence, and that such negligence was the proximate cause of said fire, your verdict must be in favor of the defendant.'
"The first part of the instruction in keeping with defendant's contention that the res ipsa loquitur doctrine does not apply in this case wholly deprives plaintiff of the benefit thereof. It tells the jury that the showing made by plaintiff, which we have held suffices to make the doctrine applicable as a substitute for specific proof of negligence thereby raising a presumption or inference of negligence on the part of defendant, is `not sufficient to warrant a verdict for plaintiff.' While the plaintiff must show by the greater weight of the evidence that the injury complained of resulted from defendant's negligence (McCloskey v. Koplar,
We do not discover in what way the instruction in the instant case is analogous to the instruction which is the subject of the foregoing ruling. The quotation we have made, supra, which is quoted in respondent's brief, suffices, without comment, to distinguish that *956 instruction from the one here in question. In the Glasco case defendant's instruction submitted or recited the very events or occurrence from which we held the inference of negligence on the part of defendant arose under the res ipsa loquitur doctrine and that plaintiff was damaged thereby. It then told the jury that even if they found those facts such facts alone were not sufficient to warrant a verdict for plaintiff. The instruction in the present case does not intrude upon the operation of the resipsa rule, its application to the facts of the case or the right of the plaintiff to the benefit thereof. The trial court was in error in granting the new trial upon the ground assigned.
[2] As the sole ground specified by the trial court in its order granting a new trial was error in the giving of defendant's Instruction 2, which we have discussed, the effect of the order was to overrule plaintiff's motion as to all other grounds therein assigned. [Manthey v. Kellerman Contracting Co.,
In the situation here respondent assumes the burden by pointing out two other grounds set out in her motion which, though overruled by the trial court, she contends are sufficient to sustain and justify the order granting a new trial; (1) the giving of defendant's Instruction 5 on accident and (2) that the verdict is against the *957
weight of the evidence. [3] The first however cannot be considered for the reason respondent did not object or except to the ruling or action of the court in giving defendant's instructions or either of them. It is said in Manthey v. Kellerman Contracting Co., supra, "In order that the respondent may have in the appellate court the benefit of the errors assigned in his motion (for a new trial) but not specified by the trial court as grounds for sustaining the motion, the record must show that respondent excepted at the time to the rulings, upon which in his motion for a new trial, he predicated those assignments of error." A somewhat similar situation is found in Bradley v. Becker,
[4] As to the second contention, that the verdict is against the weight of the evidence it must be borne in mind that this ground of the motion was overruled by the trial court and that the ruling of the trial court upon the weight of the evidence will not be disturbed upon appeal if there is any substantial evidence to support the trial court's action. "This is so because trial courts may and appellate courts may not pass upon the weight of the evidence." [Hunt v. Gus Gillerman Iron Metal Co.,
For the reasons stated the order of the trial court granting a new trial is reversed and the cause remanded with directions to set aside the order granting a new trial, reinstate the verdict, overrule the motion for a new trial and enter judgment on the verdict. Sturgis, C., concurs in result; Hyde, C., concurs.
Addendum
The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.