Nopson v. City of Seattle

207 P.2d 674, 33 Wash. 2d 772, 1949 Wash. LEXIS 484

• Court: Washington Supreme Court
• Decided: June 16, 1949
• Docket: No. 30690.
• Status: Published

Opinions

Jeffers, C. J.

This is an action for personal injuries instituted by Bergit Nopson against the city of Seattle. It is alleged in paragraph No. 3 of the complaint:

“That on or about the 7th day of November, 1946, plaintiff was riding as a passenger on a bus operated by said defendant and driven by one of its employees. That near the intersection of 3rd avenue and Pine street said bus came to a sudden and violent stop and without warning throwing the plaintiff, all this being through the negligence of the defendant, its agents, and employees.”

The acts of negligence with which defendant is charged, as set out in paragraph No. 4, are as follows:

“1. In traveling at an excessive rate of speed to wit: in excess of 25 miles per hour.

“2. In failing to keep said bus under control.

“3. In failing to keep a lookout for other vehicles using street.

“4. Making an abrupt violent stop when he knew or should have known that the plaintiff and other passengers were standing in the aisle.”

Defendant answered the complaint, admitting that at the time and place referred to in the complaint plaintiff was riding as a passenger on a bus operated by the defendant. The answer further admitted that near the intersection of Third avenue and Pine street the bus came to a sudden stop, but denied that such stop occurred through the negligence of defendant or its agent, and alleged that the stop was made to avoid collision with an automobile which swerved from the adjacent traffic lane immediately into the path of defendant’s bus, and that the sudden stop was necessary to avoid collision with the automobile and to avoid damage to all of the passengers in the bus. The answer denied all allegations of negligence contained in paragraph No. 4 of the complaint.

The cause came on for trial on January 14, 1948, before the court and jury on the pleadings above referred to, and thereafter, on January 15th, the jury returned a verdict in favor of plaintiff in the sum of two thousand seven hundred fifty dollars. Defendant timely filed a motion for judgment notwithstanding the verdict and an alternative motion for new trial. On April 7, 1948, the court entered an order denying defendant’s motion for judgment notwithstanding the verdict, and granting the motion for new trial upon the following specific ground:

“That an error was committed by the court in submitting instruction No. 8 to the jury, being an instruction on res ipsa loquitur.”

Plaintiff has appealed from the order granting defendant’s motion for a new trial.

The assignments of error are (1) in granting respondent’s motion for new trial, and (2) in failing to enter judgment for appellant on the verdict.

Appellant’s contention is that her evidence was sufficient to raise the res ipsa loquitur doctrine, and therefore the court properly gave instruction No. 8; that the court erred in granting a new trial because of the submission to the jury of the instruction on res ipsa loquitur.

The following is the relevant testimony introduced by appellant (plaintiff below) in her case in chief. At the time of this accident, Mrs. Nopson was eighty-four years of age. On the day of the accident, appellant and her daughter, Mrs. Floyd Miller, had boarded a city bus at Sixty-second and Meridian. They were going down town to meet two other daughters of appellant at the corner of Third avenue and Pine street. As the bus turned from Stewart street south on Third avenue, the trolley became disconnected and the bus stopped. At this time appellant and her daughter were seated, and they did not get up until after the bus had started. Mrs. Miller had given the signal indicating that she desired to leave the bus at Third avenue and Pine street, and after the trolley had been adjusted and the bus started, Mrs. Miller and appellant both left their seats and approached the back door of the bus for the purpose of alighting at Third and Pine.

It is not too clear at just what point the bus came to a sudden stop, but apparently it was just a short distance before it reached the intersection of Third and Pine. At this time Mrs. Miller was standing on the top step, and appellant was standing in the aisle, holding on to the hand rail on the top of the seats on either side of the aisle. We quote from appellant’s testimony relative to this stop:

“Q. I say, what kind of a stop was this that the bus made when it got down— A. Oh, it stopped just terribly fast, just like a shot. Q. What happened to you? A. I fell backwards in the aisle. I didn’t know. Somebody came and picked me up. . . . Q. What happened then, Mrs. Nopson, after that? After you were down on the floor what was done? A. Somebody come and picked me up. I tried to get up, but I couldn’t. Somebody came and picked me up and helped me up there.”

Mrs. Nopson was subsequently taken off the bus and taken to the Seattle General hospital.

We quote from Mrs. Miller’s testimony relative to this stop:

“Q. After he got the trolley poles on, what did the bus driver do? A. Well, jumped on the bus and started up at such a great speed and continued that way until he got nearly to Third and Pine where all of a sudden he stopped with the most terrible jolt I have ever experienced in my life, and I looked up and I didn’t see anything in front of the bus at all. Q. Let me stop you there. When you felt this jolt, did you look toward the front of the bus? A. Well, I looked to see why he had stopped at such a jolt. Q. Did you look toward the front of the bus? A. Yes. Q. Was there anything when you looked there in the way of the bus or between the bus and the corner? A. I didn’t see anything. Q. In the lane of traffic it was traveling in? A. I didn’t see anything.”

Mrs. Miller testified further that the only thing which prevented her from falling was that she was standing on the first step and holding with both hands to the railing which extended across the seat.

Josephine Reece was called as a witness for appellant, and testified that she was on the bus involved in this action on November 7, 1946; that she and a friend, Mrs. Bulman, were going to get off the bus at Third and Pine; that she had never seen Mrs. Nopson prior to the accident here involved; that she had not paid much attention to the way the bus was being driven until after it turned south on Third avenue; that just before the bus reached the intersection of Pine street, it made a very sudden stop; that prior to this stop it had been going pretty fast down Third avenue; that just prior to the sudden stop to which the witness referred, she was gripping the seat in front of her.

“Q. What happened very shortly after that? A. Well, this sudden stop of the bus. Q. I see. And what happened to you when the bus made that sudden stop? A. It threw me forward onto my—I was holding the front of the seat, and it threw my body, the weight of my body onto my wrist and sprained that wrist; that is, it felt like it was sprained. It was very very painful.”

This witness further testified that she saw Mrs. Nopson fall; that after the fall she was lying on the floor, and several people helped her to her feet and put her in her seat.

Mrs. Arthur Bulman, referred to in Mrs. Reece’s testimony, was also called as a witness by appellant, and testified that she was on the bus the day of the accident. She stated that it was a very rainy day; that it was raining when they got on the bus, and was raining at the time it stopped.

“Q. All right. Now, do you recall rounding the turn at Third and Stewart on that day? A. Yes, I do. Q. Do you remember anything unusual that happened on that day as you were rounding the turn? A. Yes, I do. The trolley came off. Q. Did the bus stop as soon as the trolley came off or not? A. No. I think we coasted, just cleared the corner. . . . Q. What happened then, Mrs. Bulman? Did the trolleyman get out and put the trolley back on? A. Yes, and then got back on the bus. Q. Let me interrupt you for a minute. Were you and Mrs. Reece sitting together? A. We were sitting together. Q. In what seat on the bus were you sitting, approximately? A. I think it was the second from the last, next to—not the one nearest the rear door, but the one ahead of that. Q. I see. You mean the second one in front, to the front from the rear door? A. On the right, yes. Q. Now, did you notice anything about the bus starting up on that occasion? A. Well, it started up real fast . . . Q. What was the nature of the stop that occurred? A. It was very sudden. Q. Did it have any effect on you as you were sitting in the bus? A. Yes. I was thrown forward in the seat. Q. Do you know what effect, if any, it had on Mrs. Reece’s body? A. Yes. She had her hand up to protect herself and she hurt her wrist. Q. What did you do immediately after you felt these brakes being applied? A. I think I glanced up out of the window, front window. Q. The which window? A. The front window. Q. I see, and as you glanced out of the front window, did you see anything in front of the bus? A. No, sir. Q. Did you have —from the, sitting position there as you were, can you see out of that front window? A. Fairly well, I think. Q. Was there anything at all in the bus’s line of travel between the bus and the corner at that time? A. Not to my knowledge.”

This witness thought the front end of the bus was about forty feet from the Pine street intersection when it started to stop, and she was of the opinion that, as stated by her, “it stopped right there.”

The testimony of Dr. McLemore is to the effect that when he examined Mrs. Nopson at the hospital after the accident, he found that she had what he described as “the intercapsulary fracture of the head of the femur.”

The above-quoted testimony is a fair summary of all the testimony introduced by appellant as to the nature of the stop with which we are here concerned, prior to the time appellant rested.

Robert C. Hill was the first witness called by respondent. This witness stated that he was not and never had been employed by the city of Seattle; that on the date of the accident he was on the bus hereinbefore mentioned.

“Q. Mr. Hill, please, in your own language, in your own words, tell us what happened starting at the turn up there at Stewart street and third. Tell us what happened. A. Well, as I recall, it was a very wet morning. It was about 11:10. As the bus turned from Stewart into Third street, the trolley came off. The operator got out. He opened the doors, as usual and went to replace the trolley. Just prior to this occurrence the two ladies, Mrs. Nopson and the other lady arose and went to the rear door apparently to— Q. Pardon me for the interruption. Prior to making the turn from Stewart to Third? A. That is my recollection. It may have been just about that time. Q. All right sir. Go ahead. A. The door was open and the operator replaced the trolleys, and my recollection is he had a little trouble. It took longer than usual, and while this was going on these two ladies were still standing at the rear door apparently intending to leave at the next stop. They continued to stand at the door and the bus resumed its course down Third avenue. Q. All right, now, then, what did the bus do after that, if anything, or what happened? A. The bus proceeded to about, I would say about seventy-five feet north of Pine street. Q. To within a point of seventy-five feet north, you mean? A. Approximately, I would say. Seventy-five feet. Q. Go ahead. A. There was a very sudden jerk and I arose to see what was the trouble and I just saw the rear end of— I don’t know whether it was an automobile or a truck, but automotive equipment that had crossed diagonally in front. . . . Was this automotive equipment traveling in the same direction as the bus? A. Yes. Q. Originally? A. Crossed over in front of the bus. Q. About that moment how fast was this trolley bus traveling in miles per hour, would you estimate? A. It was traveling very slowly. I’d say, in my opinion, not more than fifteen miles per hour. There was considerable traffic ahead of them.”

This witness further testified that it was almost an immediate stop.

“Q. Did this automobile stop or continue on? A. Continued on. Q. Continued on. Were you thrown about in your seat any? A. No. I was sitting when the stop came. Q. Were you thrown forward, your chest against the seat in front of you? A. No. Q. You weren’t anticipating this thing to happen? A. No.”

Mrs. George McCallister was also called as a witness for the city, and testified that she was on the bus on the day in question, and was seated directly behind the driver. She was asked to describe what happened after the bus turned onto Third avenue from Stewart street.

“A. Yes. He lost his trolleys. Q. He lost his trolleys. I see. Then did he put them on? A. Yes, sir. Q. Could you give us any idea how long it took him to do that? A. A couple of minutes. Q. You think a couple of minutes? You weren’t paying much attention to that? A. No. Q. After he put them on he started up again, did he? A. Yes, sir. Q. How fast did he proceed down Third avenue between that point and the point where he stopped suddenly? A. It was very slow, practically creeping. Q. Did you see any vehicle drive up alongside of the bus at any time? A. Yes. There was a car. It was driving alongside quite close. Q. You turn to the jury and tell in your own words and tell what you saw and what this motor vehicle did. A. This car was close all the way down the street, and just, oh, about ten feet before we got to the intersection, it cut directly in front of us. The driver had to slam on the brake, the emergency brake, both at the same time. He stopped suddenly. Q. Did you see any passengers standing on their feet just prior to this stopping? A. No, I didn’t, because I was watching this car alongside of us. I was up in front and couldn’t see. Q. You were on the left hand side just behind the driver on this bus and seated next to the left hand window? A. I was kind of looking out of this window on the side there. Q. You saw this automobile come in? A. That is right. . . . Q. Now, were you disturbed on your seat? A. No, I wasn’t. Q. Did you see Mrs. Nopson, see her when she was thrown down? A. No, I didn’t. Q. Do you remember the make of this car, Mrs. McCallister? A. All I can remember is it was just a gray car. Q. You remember it was a gray car? Was it a truck or passenger car? A. Passenger car.”

This witness further testified on cross-examination that the car suddenly swung in front of the bus, and that as it did so the bus driver immediately applied his brakes; that it seemed to her there were just inches separating the bus and the car.

Mrs. Luella M. Bishop was also called as a witness by the city, and testified that she was on the bus the day of the accident; that there was just one seat between her and the driver. The witness was asked what transpired after the trolley was replaced, and she answered:

“A. We proceeded normally on down the street, and just as we got on, past the middle of the block, a car came from the left hand side of the bus, and before it even got past the bus, probably about halfway, the car was about halfway past the bus and he cut shortly—sharply in in front of the bus. In fact, I held my breath. I didn’t see how in the world the driver could avoid crashing broadside in the side of the car, but he didn’t. He slammed on the brakes and stopped the bus in time to avoid hitting the car which didn’t seem possible, but he did it. And just as—at the time that—or just after—I don’t know—just when it was I don’t know, but it seemed simultaneously, a woman cried out, and of course, I didn’t look at the car any more. I turned around'to see what had happened and saw the lady—well, two ladies were standing in the aisle, and the driver immediately stopped the bus. I believe he pulled up to the curb a little bit, but he stopped the bus as soon as he could and went back to see what was wrong, and he asked the lady if she was hurt, and she didn’t seem to think she was, too badly hurt, and he said, ’You’d better go to the hospital and get checked up.’ Well, she didn’t seem to think so—too well of that idea, but between the bus driver and I think it was the lady’s daughter, they persuaded her to go and get examined, and I think it was the bus stop that he stopped at, and he called the dispatcher and had them send an ambulance or car or whatever it was to take her to the hospital for examination.”

Robert L. Stablein, who was in charge of the bus on the day of the accident, was called by the city, and testified that the accident happened about eleven-fifteen in the morning. Mr. Stablein had been operating busses for the city since June, 1939. He also testified as to trouble with the trolley as he turned south on Third avenue from Stewart street. He stated that after he had cleared the corner he stopped the bus and opened the front and rear doors. He further testi fied that when the rear door is opened it automatically puts the air pressure upon the brakes, and the bus cannot move until the door is closed.

His testimony relative to the stop which it is contended caused appellant’s injury, was in substance as follows: After he had put the trolley back on, he proceeded down Third avenue, reaching a top speed of about twelve to fifteen miles an hour. He first noticed there were cars back of him, and then he noticed a dark gray car come alongside the bus. All of a sudden this automobile accelerated its speed and swung directly to the right in front of him. He immediately put on his foot brake and pulled on the emergency brake, and the bus came to a stop within approximately four and one-half or five feet. Mr. Stablein stated that there was no doubt there was a decided jump of the bus when it came to a stop; that he heard a woman scream and immediately got out of his seat.

“A. There was this Mrs. Nopson hanging onto one railing, and another woman whom I found to be her daughter, standing there, and she was hanging onto this seat, the bar that runs over the top of this seat, and she had hold of this. Q. What did you do then with respect to this situation? A. I asked the woman—I said, ‘Are you hurt?’ And she said, ‘Oh, I don’t think I am hurt very badly.’ I said, ‘Can you stand on that leg?’ She must have been standing on the leg that wasn’t hurt. She tried to put weight on it and she winced. I said, ‘Listen, madam, you better sit down in this seat, and we’ll see what is the trouble.’ We got her in the seat, and I asked where—‘Where does it hurt?’ and she said, ‘Well, my hip hurts.’ ”

After the accident, Mr. Stablein pulled on down the street to the loading zone south of Pine street, and thereafter went on down to Pike street where there is a dispatcher’s phone, and reported what had happened. Mrs. Nopson was then removed from the bus and taken to a hospital.

This witness further testified that on these busses it is impossible to start as rapidly as a car may be started; that no matter how far the pedal is pressed down it takes some time for the bus to gain momentum, as it is all done automatically, and it is impossible to start with a jerk.

Instruction No. 8 reads as follows:

“If you find from the evidence that the fact that the manner of the stopping of the bus was of such a nature as would not, in the ordinary course of events, happen if those who had the control, supervision and operation thereof had used proper and reasonable care, then I instruct you that you may infer from the fact that such a stop was made was due to the negligence of the defendant, and a prima facie case is thereby established in favor of the plaintiff.

“The burden then devolves upon the defendant to furnish an explanation or rebuttal of such prima facie case by producing evidence of due- care and precaution under the circumstances and conditions necessarily within defendant’s exclusive control. If, then, after considering such explanations of the whole case, and of all the issues as to negligence, injury and damages, the evidence still preponderates in favor of the plaintiff, then plaintiff is entitled to recover; otherwise not.”

It may be stated as a general rule that a carrier is not liable for injuries sustained by passengers as the result of ordinary jolts, jerks, or stops which are among the usual incidents of travel. Wade v. North Coast Transp. Co., 165 Wash. 418, 5 P. (2d) 985; Wiggins v. North Coast Transp. Co., 2 Wn. (2d) 446, 98 P. (2d) 675. In the last cited case, we stated:

“In order to establish liability of a carrier, it is not enough that plaintiff show that the stage was ‘going quite fast,’ or that it gave a ‘sudden lurch or jerk,’ as in the case of Wade v. North Coast Transportation Co., 165 Wash. 418, 5 P. (2d) 985, cited by appellant, or that there was a sudden stop, but there must be evidence of what appeared to take place, as physical facts from which it can be inferred that the operator of the vehicle was negligent, or evidence capable of conveying to the ordinary mind a definite conception of some conduct on the part of those in charge of the vehicle, outside of that of ordinary experience, on which a finding of negligence could rest.”

We shall not attempt to cite and discuss the many cases decided by this court relative to the doctrine of res ipsa loquitur and its application. The trial court in its memorandum decision cited and quoted from Keller v. Seattle, 200 Wash. 573, 94 P. (2d) 184. This case involved an action for damages brought by Mrs. Keller against the city of Seattle. Mrs. Keller claimed to have been injured by a sudden jerk of a street car, which threw her with great force against the seat. The occurrence happened between intersections. The cited case refers to and quotes from Firebaugh v. Seattle Electric Co., 40 Wash. 658, 661, 82 Pac. 995, 111 Am. St. 990, 2 L. R. A. (N. S.) 836. In the latter case, we stated:

“It is insisted by the appellant that it is manifest that this court has not intended to announce the rule that there is a presumption of negligence unless it is apparent that the accident could not have happened without negligence on the part of the carrier. This is no doubt true, for the rule of res ipsa loquitur is based upon the apparent fact that the accident could not have happened without negligence on the part of the carrier; or, upon the literal meaning of the expression, that the thing itself speaks, and shows prima facie that the carrier was negligent.” (Italics ours.)

We are of the opinion that what we believe is the basic rule announced by Judge Dunbar, the writer of the opinion, in the Firebaugh case, supra, namely, that the doctrine of res ipsa loquitur is based on the apparent fact that the accident could not have happened without negligence on the part of the carrier, has never been receded from by the court. While different language may have been used in some of the decisions, it is our opinion the rule as above announced is still the rule in this state.

We think the following language used in the Keller case, supra, could be applied with greater force to the operator of a bus on a city street than it could to the motorman in the Keller case:

“It is a matter of common knowledge that a motorman, while operating his car between stops, is often confronted with dangers which require the sudden setting of brakes, such as a jaywalking pedestrian, a child running into the street after a ball, an automobile or truck going in the same direction suddenly pulling over into the middle of the street or suddenly veering so close to the track as to make a collision probable.”

In the instant case, as in the Keller case, there is no question but what the action was based upon the theory that appellant was injured by the careless manner in which the bus was operated. In other words, the theory of appellant is that the driver of the bus was negligent in bringing the bus to such a sudden and violent stop.

In the case of Anderson v. Harrison, 4 Wn. (2d) 265, 272-3, 103 P. (2d) 320, we again affirmed in substance the statement hereinbefore quoted from the Firebaugh case, using the following language:

“The rationale of that doctrine [res ipsa loquitur], as interpreted by our decisions, is that, when an accident occurs, or an injury is inflicted, under circumstances which are of such an unusual character as, in the light of ordinary experience, are inexplicable except as the result of negligence of the carrier, negligence will be presumed, and the burden is then cast upon the carrier to show that its negligence did not cause the injury. [Citing cases.]”

We also stated in the Anderson case:

“The presumption of negligence ‘arises not from the naked fact that an injury has been inflicted, but from the cause of the injury, or from other circumstances attending it.’ [Citing cases.] Nor is that principle affected by a variance in the degree of care required to be exercised by the party charged with negligence. Even though the highest degree of care be required in a given instance, the mere fact of injury alone, apart from the causative factors, does not of itself raise a presumption of negligence.”

In two very recent cases, namely, Morner v. Union Pac. R. Co., 31 Wn. (2d) 282, 196 P. (2d) 744, and Carbery v. Fidelity Sav. & Loan Ass’n, 32 Wn. (2d) 391, 201 P. (2d) 726, we considered the doctrine of res ipsa loquitur and its application. In the Morner case, many of our decisions are collected, and certain principles based upon these decisions are announced. We stated therein:

“The doctrine of res ipsa loquitur, an expression which literally translated means ‘the thing speaks for itself,’ as applied in this state and most jurisdictions is as follows: When the agency or instrumentality which caused the injury complained of is shown to have been under the exclusive control and management of the defendant or his servants, and the accident, or injurious occurrence, is such as in the ordinary course of events does not happen if those who have “the control and management of the agency or instrumentality use proper care, the injurious occurrence of itself, in the absence of explanation by the defendant, affords reasonable evidence, or a permissible inference, that such occurrence arose from or was caused by the defendant’s want of care. [Citing cases. In addition to our own decisions, we cited, in support of the above statement, 38 Am. Jur. 989, Negligence, § 295; 45 C. J. 1193, Negligence, § 768; 9 Wigmore, Evidence (3d ed.), § 2509; 1 Shearman and Redfield, Negligence (Rev. ed.) 151, § 56; 13 Wash. L. Rev. 215.] ...

“The doctrine of res ipsa loquitur is based in part upon the theory that the defendant, having the sole and exclusive charge of the agency or instrumentality which caused the injury, knows the cause of the accident, or injurious occurrence, or has the best opportunity of ascertaining it, and should, therefore, be required to produce the evidence in explanation thereof, while, on the other hand, the plaintiff has no such knowldge and is, therefore, compelled to allege negligence in general terms and to rely upon proof of the happening of such occurrence to establish negligence.

“While the theory upon which the doctrine of res ipsa loquitur rests is well understood, there is no fixed, general rule determining its applicability in all cases, nor can any exact classification be made of the instances in which the maxim as a rule of evidence is to be applied. Whether or not the doctrine is applicable in a specific instance depends upon the peculiar facts and circumstances of the individual case. McClellan v. Schwartz, 97 Wash. 417, 166 Pac. 783.

“With reference to the application of the doctrine, this court, in common with many others, has held that while the maxim, when properly applied, is of value in the administration of justice, its scope is nevertheless limited, and ordinarily it is to be sparingly applied, in peculiar and exceptional cases, and only where the facts and the demands of justice make its application essential(Italics ours.)

As to the applicability of the doctrine of res ipsa loquitur, this court, in the course of the opinion in the Morner case, stated:

“A wealth of cases will be found in 45 C. J. 1214, Negligence, § 781, supporting the statement therein that:

“ ‘As a necessary basis for the application of the doctrine, it must appear, in conformity with the statements of the rule, that the negligent cause or thing which produced the injury complained of was wholly and exclusively in the possession, and under the control or management, of defendant or his servants. Accordingly the doctrine cannot be invoked where there is a divided responsibility and the accident is due in part to the act of a third party over whom defendant has no control, or where the injuring agency is partly or entirely under the control or management of plaintiff.’ ”

We further stated in the cited case:

“Since, in our opinion, the evidence clearly demonstrates that the injurious occurrence here involved resulted or could have resulted from the operation of one or more agencies or instrumentalities, or from several independent agencies or instrumentalities operating concurrently, the doctrine of res ipsa loquitur was not applicable.”

In the instant case, appellant pleaded specific acts of negligence. Respondent, to meet appellant’s contention relative to the claimed unusual and violent stop, introduced the testimony of four witnesses, three of whom were entirely disinterested, to the effect that the stop was caused by a car cutting across directly in front of the bus, necessitating the immediate application of the brakes in order to avoid a collision. There is some negative testimony in behalf of appellant to the effect that two of her witnesses looked'and did not see anything in front of the bus, but we are of the opinion that the evidence is almost conclusive that a car did cut in front of the bus, necessitating the application of the brakes and, the abrupt stop which followed.

In the Carbery case, supra, the trial court gave an instruction on res ipsa loquitur. A verdict and judgment for the plaintiff followed. In reversing the case, we stated:

“By the instruction complained of, the court told the jury that, under the circumstances stated in the instruction, they might infer negligence on the part of the elevator operator.

“There was no evidence to the' effect that the appliance used in opening and closing the door was defective in any way, or that it had broken or failed to function properly during the operation in question. Had there been such evidence, an instruction on the doctrine of res ipsa loquitur might have been appropriate; but, by the instruction com plained of, the court permitted the jury to go beyond the direct evidence and infer negligence on the part of the operator.

“Under the evidence before the jury, there was no proper basis for such an instruction, and the instruction was erroneous and prejudicial, as inviting speculation concerning unknown causes, not disclosed by the evidence, which resulted in the injuries suffered by respondent.” (Italics ours.)

It is apparent that the mechanical appliances, namely the brakes, which were directly responsible for the stop in the instant case, were functioning properly, as, according to appellant’s own testimony, this heavy bus came to an almost instant stop.

We are of the opinion that, in the instant case, the demands of justice do not require, nor do the circumstances surrounding this stop justify, an instruction on the doctrine of res ipsa loquitur. In other words, we are of the opinion that the evidence introduced by appellant does not show that the accident was of such a character that it could not have happened without negligence on the part of the operator of the bus.

We are of the opinion, however, that there was sufficient evidence introduced on the part of appellant to take the case to the jury on the theory that the operator of the bus was guilty of negligence in making this stop in the manner and place he did, there not appearing to have been any necessity for making an emergency stop. However, when the city introduced proof to the effect that it became necessary to make the sudden stop because of the fact that a car had cut across directly in front of the bus, the case should have been submitted to the jury on the issue raised by the evidence of appellant and that presented by respondent.

We are of the opinion that the court, by instructions Nos. 7 and 9, hereinafter quoted, and other instructions given, fully covered the issues presented in this case.

“No. 7. You are instructed that the law recognizes that to a certain extent jerking, jolting, lurching and swaying of trolley coaches is unavoidable in the practical operation of such trolley coach, and is necessarily incident to their ordinary and careful operation. In order to recover in this cause the plaintiff must show by a fair preponderance of evidence that the jerking or jolting or lurching and swaying of the trolley coach upon which said plaintiff was a passenger, and as complained of, if such did occur, was unusual, extraordinary, unnecessary and the result of the careless and negligent operation of said trolley coach by the employee of the defendant, The City of Seattle, in charge thereof.”

“No. 9. If you find from a fair preponderance of the evidence that the operator of defendant’s bus through no negligence on his part was compelled to stop or slow down said bus suddenly to avoid collision with another vehicle, then you are instructed that the defendant’s operator was not guilty of negligence and plaintiff cannot recover in this action.”

We are further of the opinion that it was not only error to give instruction No. 8, but prejudicial error, justifying the trial court in granting respondent city’s motion for a new trial.

Respondent also claims that the court erred in giving instructions Nos. 4 and 6, and in view of the fact that this case must be remanded for a new trial, we think reference should be made to this contention. There is no question but what, under the case of Larson v. Seattle, 25 Wn. (2d) 291, 171 P. (2d) 212, respondent on this appeal must raise the question of error on other instructions, or the instructions given would become the law of the case on a second trial.

We are thoroughly convinced that the court was in error in giving instruction No. 4, especially the first part of such instruction, which reads:

“The law requires that a trolley coach operator must drive at all times with a much greater care for his passengers’ safety than must the driver of a private car.”

The jury were instructed by instruction No. 5 that the operator of the bus was required to drive same with the highest degree of care for the safety of his passengers consistent with the practical operation of the bus. By instruction No. 11 the jury were told that respondent would be liable for the slightest degree of negligence on the part of the operator of the bus if they found that such negligence was the proximate cause of the accident in question.

We are of the opinion that it not only was unnecessary to give instruction No. 4, but that it was error to attempt to compare the duty of a bus operator with that of the operator of a private car. In other words, that comparison is so indefinite as to give to the jury nothing upon which to base a conclusion, and we think it is misleading.

We are also of the opinion that instruction No. 6 as given by the court is not a proper statement of the law. Such instruction reads:

“You are instructed that a public trolley coach operator is bound to assume in driving his coach that he may at any time be confronted with the necessity of making an emergency stop in traffic; that he is bound at all times to drive his trolley coach with the highest degree of care for his passengers compatible with practical operation and at such speed and with such control that if confronted by an emergency, he can apply his brakes without unreasonable danger of injury to his passengers.”

It is true that it is a matter of common knowledge that the driver of a bus is undoubtedly often confronted with dangers between stops which may require the sudden application of his brakes. However, there is no law of which we are aware which requires such operator to assume at all times that he is going to be confronted with an emergency stop, and to drive at such speed that, if confronted by ai emergency, he can apply his brakes without unreasonable danger of injury to his passengers. It seems to us this instruction announces, in effect, a rule contrary to the one often announced by this and other courts, to the effect that a driver has the right to assume, until he knows or should know to the contrary, that the other users of the road will obey the rules of the road. We are of the opinion that the jury, by instruction No. 5 as given by the court, were properly instructed on the matter of speed and control of the bus referred to in instruction No. 6.

Instruction No. 5 refers to the statute relative to the necessity of operating a vehicle of any character in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of traffic, etc. After such reference to the statute and the speeds permissible in the city, the instruction further states:

“You are instructed that if you find that defendant’s driver drove at a speed in excess of 25 miles per hour; or did not drive at a reasonable minimum speed as defined by the statute quoted; or drove at a speed higher than that which would be proper, in light of the surrounding circumstances, traffic conditions, and place where he was driving due to his duty to use the highest degree of care for his passengers consistent with practical operation; then he would be negligent, and you must find for the plaintiff, if this negligence, if any, was a proximate cause of plaintiff’s injuries.”

For the reason specifically referred to in the court’s order, and for the reason that, in our opinion, error was also committed in giving instructions Nos. 4 and 6, the judgment of the trial court granting a new trial must be, and it is, affirmed.

Robinson, Steinert, and Simpson, JJ., concur.