Lukitsch v. St. Louis Public Service Co.

246 S.W.2d 749, 362 Mo. 1071, 1952 Mo. LEXIS 608

• Court: Supreme Court of Missouri
• Decided: March 10, 1952
• Docket: 42095
• Status: Published

Opinions

HOLLINGSWORTH, J.

This case was transferred from Division One, neither of two opinions submitted therein receiving a .majority vote. Portions 'of those opinions are used herein.

The action is for $15,000 damages for personal injuries sustained by plaintiff when she fell to the floor of defendant’s eástbound bus at a point on Hebert Street, an east-west street, and east of the intersection of that street with Blair Street in St. Louis. Plaintiff’s case was submitted to a jury under the res ipsa loquitur dodtrine, plaintiff having alleged defendant’s bus was “operated by one of its agents, servants and employees in a negligent manner ’ ’. Her petition stated the circumstances of an unusual occurrence, in that “said bus suddenly jolted and jerked in a violent and unusual manner”, thereby causing plaintiff to lose her balance and to be violently thrown to the bus floor and injured. The jury returned a verdict for defendant. The-trial court sustained plaintiff’s motion for a new trial on the specified grounds that Instructions 3, 4, 5 and 6, given by the trial court at defendant’s instance, were “erroneous, misleading, improper and incorrect instructions of law”. Defendant has appealed from the order granting the new trial.

Defendant-appellant here contends that Instructions 3, 4, 5 and 6 are not erroneous but are correct applications of the law to the facts; and that .the trial court’s order granting a new trial was an erroneous ruling upon matters of law and should be .reversed. While trial courts have wide discretion in passing on motions for a new trial where there is error in the record, and may even grant a new trial irrespective of the grounds assigned in a motion for a new trial, yet the power of the trial court to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of issues of fact. There is no discretion in the law of a case, nor ’can there be an exercise of sound discretion as to the law of a case. Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S. W. 2d 383; Schipper v. Brashear Truck Co., Mo. Sup., 132 S. W. 2d 993; Loftus v. Metropolitan St. R. Co., 220 Mo. 470, 119. S. W. 942.

Plaintiff introduced evidence tending to show that, at about seven o’clock on the evening of July 12, 1948, she boarded defendant’s eastbound Walnut'Park bus on Hebert Street at the southeast corner of the intersection of Hebert and Blair Streets. She was intending to go downtown shopping. She showed her pass to the operator of the bus, and, as the bus moved on, plaintiff “walked middleways of the bus — back to the second post — to get a seat”, when she heard “a most violent jerk and jar — a terrible squeaking”. She was thrown “to the floor all the way up to the front by the driver’s seat” and injured. Plaintiff further testified: “Q. Do you know where that squeaking noise came from? A. Probably the brake. Q. Of the bus? A. Yes. Q. Did the bus stop suddenly? A. Yes, sir.” And on cross examination: “Q. That is when the stop was made? A. Yes. I heard the most violent squeaking;.1 don’t remember what happened. Q. You could tell the brakes of the bus were applied? A. Yes, sir. * * * Q. What I am trying to get at: Did that throw you off. balance? A. The squeak jarred me off balance * *

Without objection, plaintiff also proved by her witness, Graves, a policeman who was called to, the scene of the accident, that he saw plaintiff lying on the floor of the bus, and that: “Q. Did you talk to Mrs. Lukitsch as to how she happened to get on the floor of that bus? A. Yes, sir. She stated she had just boarded the bus at Blair and ITebert Street and was walking back in the aisle to get a seat when the bus made a sudden stop”, etc. “Q. Did you talk to the bus driver? A. Yes, sir. Q. What did he tell you? A. He stated that a car had cut in front of him and he had made a sudden stop to avoid striking this other automobile.”

Also, without objection, plaintiff proved by her son, who had heard of his mother’s injury and had gone to the scene, that- he there talked to the bus driver: “What did he tell you? A. He told me that a car pulled in front of him and he had to stop suddenly. ’ ’

Defendant introduced evidence tending to show that as the bus moved away from the intersection of Hebert and Blair and had “straightened out”, it was proceeding along Hebert Street at a rate of speed of not more than fifteen miles an hour. There were cars parked on both sides of the street. The bus was moving east two or three feet from the cars parked on the south side of the street. Hebert Street is of “regular” width, and there was room for two vehicles to pass between the parked ears. An eastbound automobile “going pretty fast” .passed along the left side of the bus. There was no traffic coming from the west. “He (the driver of the automobile) cut*to the right and made a full stop (in front of the bus). * * * When he pulled out in front of me I (the bus operator) quick pulled on the emergency brake and that is when this lady fell *■ * The bus operator further testified that he “didn’t hear any horn either”. He. also testified: “Q. And you say you saw that automobile just to the left of you? 'A., Yes, sir. Q. It then cut in front of you suddenly? A. Cut to the right suddenly and stopped.” The bus was brought to a stop when its front end was about two feet from the other vehicle.

Mrs. George Leis, a pedestrian walking eastward on the south side of Hebert Street in the same block in which the bus came to a sudden stop, testified in behalf of defendant: * * what attracted my attention to it was a machine coming down Hebert Street from the west, making such a noise; just honk, honk, honk, just like he wanted the bus — I said to my husband, ‘ I guess he wants the bus driver to get off the street’, just in conversation.” (What she said to her husband was stricken from the. evidence, but it indicates that she did not mean to imply by her testimony that the bus was depriving the automobile of room for passing.) She further testified:' “Well, the car was coming quite fast, * *. I saw'the machine swerve in front of him, * * *. Then the bus driver stopped immediately.” And on cross examination: “Q. Was the bus crowding .him over? A. No, sir.”

George Smith, a passenger on the bus, testified in behalf of defendant: ‘ ‘ The first thing that attracted my attention was a man coming down the street blowing his horn and trying to pass the bus. When the bus had just got going a ways, all of a sudden, without a ■moment’s hesitation, he crashes right around in front of the bus and the bus driver has to slam on the brakes * *

Instruction 3, hereinafter set out, authorized a verdict for defendant upon hypothesized facts purportedly supporting the theory that the automobile moving eastwardly had passed' the bus and then turned into the pathway of the bus so suddenly as to bring about an emergency obliging the bus operator to stop at once in order to avoid a collision. That instruction was as follows:

“The Court instructs the jury that it is the duty of the operator of the motorbus to exercise the highest degree of care for the safety of the passengers thereon and likewise to exercise the highest degree of care for the safety of automobiles and the occupants thereof, that is such care as a very careful and prudent person would exercise under the same or similar circumstances.

“In this connection you are further instructed that if you find and believe from the evidence that at the time and place mentioned in the evidence an automobile suddenly swerved in front of defendant’s motorbus and that the operator of said motor-bus was confronted with an emergency as a result thereof, if you so find, and that the operator of the motorbus attempted to avoid a collision with said automobile by bringing the motorbus to a stop, and if you find and believe from the evidence that the operator of said motorbus could not anticipate that plaintiff might have been injured by the stopping of said motorbus and if you further find and believe that under the circumstances the operator of said motorbus was exercising the highest degree, of care in the operation thereof, then, in such event, plaintiff is not entitled to recover and your verdict must be in favor of defendant. ’ ’

Plaintiff contends this is a res ipsa loquitur case; that the sudden jolting and jerking of the bus, in and of itself, warranted inferences of negligence which by Instruction 3 were excluded from consideration by the jury. In her original brief she says: “There are many things other than negligence of the operator of defendant’s bus which may have caused the bus in the instant case to have suddenly checked its speed. We suggest the following: that the braking mechanism of the bus was defective, and the defendant by and through its servants and agents other than its operator, negligently maintained such braking system; negligence of defendant, by and through servants and agents other than it's operator, in maintenance of the bus in respects other than its braking mechanism, such as a defective wheel, tire, bearing, or axle.” In her supplemental brief, she adds these suggestions: ‘ ‘ The bus driver may have been driving too far on the north or wrong side of the street. * '* * He may not have timely or properly applied the brakes of the bus. He may not have timely swerved his bus to the right after the driver of the oncoming automobile first sounded the horn of his automobile. Certainly, he was not following the laiv which required him to drive as close to the right-hand side of Hebert Street as practicable.” In support of these suggestions, plaintiff cites La Vigne v. St. Louis Public Service Co., Mo. Sup., 181 S. W. 2d 541; Durmeier v. St. Louis County Bus Co., Mo. Sup., 203 S. W. 2d 445; Nix v. St. Louis Public Service Co., Mo. App., 228 S. W. 2d 369.

The trouble with plaintiff’s theory is that this is not a true res ipsa loquitur case, although it was submitted at the instance of plaintiff as such. Gibler v. Quincy, O. & K. C. R. Co., 148 Mo. App. 475, 128 S. W. 791; Durmeier v. St. Louis County Bus Co., supra. The petition alleged that plaintiff was injured when the bus gave a violent jerk. It did not allege general negligence of defendant. It alleged only that the bus was operated by one of defendant’s servants in a negligent manner. Furthermore, plaintiff undertook to prove, and did prove, that the sudden jerk of the bus was caused by a sudden application of the brakes. Therefore, both by her petition and by her proof she debarred herself from the right to recover under .the res ipsa loquitur doctrine in its true sense. This for the reason that in res ipsa loquitur cases two elements are always essential: (1) the petition must allege general negligence, and (2) the evidence must not disclose specific negligence as the proximate cause. La Vigne v. St. Louis Public Service Co., supra. And if specific negligence is either pleaded or proved, recovery under this doctrine is denied. Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S. W. 2d 599.

The La Vigne and Nix cases, supra, are true res ipsa loquitur cases and what is said in those cases is not applicable in this case. Construing the petition and evidence in this ease as liberally as we may, we must hold that plaintiff’s right of recovery was limited to whether the sudden application of the brakes on the bus and the resulting sudden jerk and plaintiff’s consequent injuries constituted negligence in the operation of the bus under the facts and circumstances shown in this case. And it is in that light that Instruction 3 must be considered. 65 C. J. S. p. 1025.

It must be conceded that if, as the bus proceeded eastward on Hebert Street, the operator was exercising the highest degree ■ o'f care in its operation, and that the automobile mentioned in the eviclence suddenly swerved in front of it, thereby creating an emergency, and that the operator could not reasonably have anticipated that the automobile would swerve in front of the bus and had done nothing to create the emergency, and that the operator, in the exercise of the highest degree of care, was required to bring the bus to a sudden stop to avert a collision, then he was not negligent.

Plaintiff’s Instructions 1 and 2 had admonished the jury that defendant- was a common carrier and had the continuous duty to exercise the highest degree of care in the operation of the bus, and defined the term “highest degree of care”. Thus, by these instructions, the duty of the operator was clearly put to the jury.

With the effect of Plaintiff’s Instructions 1 and 2 in mind, it is clear that Instruction 3 precisely directed the jury as to each and every factual element necessary for it to find in order to absolve the operator from negligence, except that it did not require a finding that the operator had done nothing to create the emergency and could not have anticipated it would arise. In this connection, we think it can further be said that if the bus operator did nothing to create the emergency, then he could not anticipate it would occur, in the absence of some fact or circumstance that would serve as a warning that the automobile driver might swerve suddenly in front of the bus as he passed it.

In Durmeier v. St. Louis County Bus Co., Mo. Sup., 203 S. W. 2d 445, a case very similar to this one, in which a concisely drawn instruction hypothesizing the facts upon Avhieh defendant sought a verdict was given, there was a specific requirement of a finding that the bus operator was not guilty of any negligence and that the act of the driver of the passing car in suddenly swerving in front of the bus was the sole cause of the incident. It might well be here said that had Instruction 3 in this case been as concisely and clearly drawn as was the instruction under scrutiny in the Durmeier case, then the vexing problem here presented would not have arisen. But there is no suggestion in that case that the instruction would have been held bad had it not contained the express requirement above stated. A careful analysis of tjie ease, a portion of which is hereinafter quoted, does not convince us it would.

If the facts in the case at bar, in and of themselves, exclude any reasonable inference of negligence on the part of the bus operator in bringing about the emergency and that he could not reasonably anticipate the car would suddenly swerve immediately in front of the bus, then there could be no prejudicial error in Instruction 3 in its omission of those elements,

There is no fact or circumstance in the record from which a reasonable inference can be drawn that, as contended by plaintiff, the bus driver “may have been driving too far on the north or wrong side of the road”, or that “certainly, he was not following the law which required him to drive as close to the right-hand side of Iiebert Street as practicable.” Quite to the contrary, the only evidence on that phase of the case was that of defendant, which was that the bus was being operated with its right side within two or three feet of the cars parked on the south side of Iiebert Street. True, the jury was not required to believe defendant’s evidence, but neither may the jury be permitted to conjure up imaginary specific instances of negligence in .the absence of supporting evidence. Gibler v. Quincy, O. & K. C. R. Co., 148 Mo. App. 475, 128 S. W. 791; 65 C. J. S. p. 999. When the jury believed, as its verdict showed it did, that an emergency arose by reason of the car, which was not under the control of defendant, swerving in front of the bus, it then seems too clear for argument that .the question of determining whether the emergency was created in whole or in part by the bus operator must be determined from facts and circumstances in evidence, not by mere surmise.

Plaintiff’s further suggestion' that the bus operator may not have “timely or properly” applied the brakes or may not have “timely swerved the bus to the right” is fully answered by the express direction of Instruction 3. It required a finding of sudden swerving of the automobile in front of the bus confronting the operator of the bus with an emergency, his effort to avoid collision by bringing the bus to a stop, and that in acting as he did (suddenly stopping the bus) he was in the exercise of the highest degree of care. - The word “emergency” means “an unforeseen combination of circumstances which calls for immediate action”. Merriam-Webster’s New International Dictionary. Therefore, the jury was required to find that the swerving of the car in front of the bus created an unforeseen combination of circumstances calling for immediate action, and that in suddenly stopping the bus the operator was exercising tlie highest dgree of care. Defendant’s evidence warranted the jury in so finding.

Neither do we believe that the “honking” of the horn by the driver of the car warrants an inference that had the bus operator heard and heeded it he reasonably could have anticipated that the car might be suddenly swerved out of its path of travel and into the path of travel of the bus immediately after passing it. This incident occurred in the middle of the block, where the sounding of a horn by a driver in the rear ordinarily means at most that he intends to pass on the left of the forward vehicle. Therefore, unless there was some Other fact or circumstance present which would cause the bus operator, by the use of his senses thus alerted by a repeated “honking” of the horn, to anticipate that the car would be suddenly swerved in front of the bus, then the sounding of the horn was of no significance. Defendant’s evidence expressly excluded the only circumstances that might have existed: (1) that the bus was so over-crowding.the ear as possibly to cause it to immediately swerve to the right after passing, and (2) that there was traffic approaching from the east which would require such swerving to avoid collision therewith. Again, it is true the jury was iiot required to believe this evidence, but certainly, for the reasons hereinabove stated, it would not, in the absence of supporting evidence, be warranted in conjecturing that either of these specific circumstances did exist.

In the Durmeier case, 203 S. W. 2d 445, 448, we said: “It must be kept in mind that the bus and the ear were traveling in the same direction. A duty rested upon the driver of the car not to pass unless he had sufficient clearance ahead to do so. However, there was no evidence that there was any traffic in the other lane coming toward the bus and the ear. Again, plaintiff says the instruction directed the jury that there was no duty on defendant’s bus driver to take any action when the automobile which the bus struck was approaching and was about to drive in front of the bus. [Citing cases.] In those cases the colliding vehicles and pedestrians were approaching intersections and were about to cross each other’s paths, while in the case before us the vehicles were going in the same direction, one passing the other. Therefore, there was no signal of danger until the passing car turned toward the other and that too soon. The cases cited by plaintiff have no application. Instruction number four is worded so as to conform to the facts in evidence. Note what it says: i «= * * if yOU farther fiucl and believe that the driver of the automobile mentioned, in the evidence suddenly and without warning swerved or turned said automobile into and against or immediately in front of said motorbus * * *.’

“Certainly there was no indication of danger until the car turned or swerved. The instruction, under the facts in this case, is not subject to the-criticisms made by plaintiff.”

Instruction 3 is not approved as the perfect instruction to be followed .or used in other cases. But under the circumstances of this case it hypothesized sufficient facts to wholly absolve defendant from fault and (as to this case) did not limit the field of permissible inferences which the jury could draw under the pleadings and evidence. We rule the trial court did not err. in giving Instruction 3.

Instruction 4 is as follows:

“The Court instructs the jury that the burden of proof is on the plaintiff to show by the greater weight of the credible evidence that she was injured through the negligence of the defendant.

“You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence, if you find and believe from all the evidence in the ease that the defendant was not negligent, and if you do find and believe from all the evidence in the ease that the.defendant was not negligent, then your verdict should be for the defendant. ’ ’

We believe that Instruction 4 should not be considered misleading and confusing or erroneous when read in connection with plaintiff’s principal Instruction 2, which follows generally the form as suggested in Harke v. Haase, 335 Mo. 1104, 75 S. W. 2d 1001. Instruction 4 is similar to the defendant’s modified Instruction C suggested in the Harke case (335 Mo. at page 1111, 75 S. W. 2d at page 1004). Instruction 4 is dissimilar tp Instruction 5 considered in the case of West v. St. Louis Public Service Co., 361 Mo. 740, 236 S. W. 2d 308, which Instruction 5 (although there held not to be misleading or confusing when read and considered in conjunction with the other instructions given in the West case) is not to be recommended, in its form or in its use, in any case which is based, in whole or in part, upon circumstantial evidence. West v. St. Louis Public Service Co., supra.

The first paragraph of Instruction 5 is identical with Instruction 6 given in the West case, the giving of which Instruction 6 was held by this court to have been in the proper exercise of the trial court’s discretion. ’ West v. St. Louis Public Service Co., supra. The second and third paragraphs of Instruction 5 are as follows:

‘ ‘ If the plaintiff is not entitled to recover, then in your deliberations you should not consider the amount of damages.

“Neither passion, prejudice nor sympathy should influence you in any manner in deciding this case, for it is your sworn duty to try this case and to decide it impartially according to the evidence and the instructions of the Court.”

The second paragraph logically follows the first, and in our view is not unduly or prejudicially repetitious. The giving of cautionary instructions in the language of the third paragraph has been held to be properly within the trial court’s discretion. And compare Instruction 5 as a whole with Instruction 8 examined by this court in Mendenhall v. Neyer, 347 Mo. 881, 149 S. W. 2d 366. See also Oliver v. Morgan, Mo. Sup., 73 S. W. 2d 993, Derrington v. Southern R. Co., 328 Mo. 283, 40 S. W. 2d 1069; Aronovitz v. Arky, Mo. Sup., 219 S. W. 620; Waeckerley v. Colonial Baking Co., 228 Mo. App. 1185, 67 S. W. 2d 779. It was not error to give Instruction 5.

Instruction 6, on the credibility of the witnesses, is as follows:

“The court instructs the jury that you are the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight, you may take into consideration the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling towards the parties to the suit, the probability or improbability of his or her statements, as well as all the other facts and circumstances given in evidence. ’ ’

We see no error or abuse of- the trial court’s discretion in giving this Instruction 6 in the instant case and think that it is not misleading or prejudicial. Its giving affords no ground for granting a new trial. Respondent in her brief does not attempt to point out any impropriety in giving the instruction. It is clear and short. It does omit the words “the character of” which usually follow the word “consideration” as used in the second sentence of the instruction. See Malone v. Franke, Mo. Sup., 274 S. W. 369. This omission surely does not make the instruction erroneous, in our opinion. The instruction does not include a clause relating to willful false swearing, the propriety of the use of which clause (and its language) has been questioned in some cases. See Hamre v. Conger, 357 Mo. 497, 209 S. W. 2d 242; State v. Willard, 346 Mo. 773, 142 S. W. 2d 1046; Woehler v. City of St. Louis, 342 Mo. 237, 114 S. W. 2d 985, and cases therein cited.

The order granting the new trial is reversed and the cause is remanded to the circuit court with directions to reinstate the judgment entered in favor of defendant in accordance with the verdict of the jury.

Ellison, G. J., and Tipton, J., concur; Conhling, J., concurs in separate opinion; Dalton, J., dissents in separate opinion; Hyde, J., dissents in separate opinion; and Leedy, J., dissents and concurs in separate dissenting opinions of Hyde and Dalton, J,T.