Whitney v. Northwest Greyhound Lines, Inc.

242 P.2d 257, 125 Mont. 528, 1952 Mont. LEXIS 103

• Court: Montana Supreme Court
• Decided: March 15, 1952
• Docket: 9024
• Status: Published

Opinions

MR. JUSTICE ANGSTMAN:

This action is to recover damages alleged to have been sustained by plaintiff when riding in a bus operated by defendant and which overturned on highway No. 10 about eight miles west of Ellensburg, Washington, on January 13, 1949, en route from Seattle to Spokane. The complaint alleged that the bus driver while acting within the scope of his employment with defendant, 1 ‘ so carelessly and negligently operated and drove said bus, that in attempting to pass a truck moving in the same direction as the bus, the said bus driver drove said bus so far to the left, and wrong side of said highway, that the said bus went off the said highway on the left side thereof, and turned over on its side,” causing the injuries to plaintiff complained of. It was alleged that the bus was “under the exclusive control, operation and management of the defendant.”

The answer was a general denial except that it admitted that the bus was under the exclusive control, operation and management of defendant. The answer contained an affirmative defense to the effect that the bus driver blew the horn on the bus as he attempted to pass the truck; that when he started to pass the truck it was on the right of the center line of the highway marked by a yellow line and there was then room on the left for the bus to pass, but that while attempting to pass the driver of the truck without warning swung the truck to the left and ‘ ‘ directly in the path of the bus; that in an attempt to keep said bus from being struck by said truck, the bus driver slowed down, and turned his bus to the left, but notwithstanding his efforts to avoid being struck by said truck, said bus was struck by said truck and was thereby crowded off the road onto the north side of said highway into a snow bank and turned partly over.” It also contained another affirmative defense which was abandoned at the trial.

The reply put in issue the affirmative allegations of the answer. The trial resulted in a verdict in favor of defendant. Plaintiff’s motion for a new trial was denied and she has appealed from the judgment. Such portions of the evidence necessary to present the legal questions involved will be alluded to later.

Error is predicated upon instructions given over plaintiff’s objection and in refusing some instructions offered by plaintiff. The principal legal question presented is whether the doctrine of res ipsa loquitur applies under facts and circumstances presented by the record, and if so, was the jury properly instructed on the subject. Interwoven with this general subject is the usual difference of opinion between counsel as to whether under that doctrine there is a shifting of the burden of proof. On that point the courts are in disagreement. Even this court has gone both ways on the question.

The early case of Ryan v. Gilmer, 2 Mont. 517, 25 Am. Rep. 744, held that when the doctrine applies it places the burden upon defendant of proving that there has been no negligence. This case was followed in Dempster v. Oregon Short Line R. R. Co., 37 Mont. 335, 96 Pac. 717, and in Callahan v. Chicago, B. & Q. R. R. Co., 47 Mont. 401, 133 Pac. 687, 47 L. R. A., N. S., 587.

In the case of Vonault v. O’Rourke, 97 Mont. 92, 107, 33 Pac. (2d) 535, 541, this court said: “ ‘The doctrine of res ipsa loquitur does not cast upon the defendant the burden of disproving negligence in the sense of making it incumbent upon him to establish freedom from negligence by a preponderance of the evidence.’ 20 R. C. L. 195 * * *. The doctrine does not alter the general rule that the .burden is upon the plaintiff throughout the case to prove the negligence complained of.” This case was followed in Hickman v. First National Bank, 112 Mont. 398, 117 Pac. (2d) 275.

It is not necessary in this case to announce the correct rule since the court by instructions given without objection placed the burden of proof on plaintiff. Neither is it necessary to determine whether under the doctrine of res ipsa loquitur there arises a presumption of negligence on the part of defendant or only an inference. The terms are often used interchangeably by some courts.

The plaintiff’s proof showed that she was a passenger for hire riding on the bus at the time it overturned. She occupied the seat directly behind the driver of the bus. Beside her sat Mr. Harold Oathes, the business agent for the motor employees’ union. She observed the truck and trailer when the bus was one-eighth of a mile away. She observed the trailer swaying. She said that the bus driver was conversing with Mr. Oathes who had his head over the seat of the driver.

When the bus which was traveling about 50 miles per hour got to within 300 feet of the trailer the driver turned it to the left to pass the trailer, at the same time conversing with Mr. Oathes, and the left front wheel got caught in the snow bank, which pulled it off the road. The snow flew over the windshield so that nothing could be seen and the bus turned over.

The evidence of defendant was to the effect that the bus driver did not talk with Mr. Oathes while the bus was in motion ; that the overturning of the bus was due to the following: That as the bus driver was in the act of passing the trailer and truck, the truck driver swung to the left so far as to cause the trailer to strike the bus and that to avoid injury to the passengers he turned so far to the left as to cause the bus to overturn. There was a conflict in the evidence as to whether there was a mark on the bus where the trailer is supposed to have struck it. Defendant produced witnesses who stated that there was a mark or indentation on the bus above the window near the rear wheel but that it was not sufficient to knock the bus off the highway. Plaintiff submitted proof to the effect that a witness was unable to find any such mark.

There is much discussion in the briefs as to the extent of plaintiff’s injuries. With that question we are not now concerned except to say that the evidence showing the extent of the injuries is in sharp conflict and under well-settled rules solution of the question is for a jury under proper instructions.

The court gave to the jury the following instruction: “You are instructed that the fact of injury, if any, to the plaintiff raises no presumption of negligence on the part of the defendant. You are instructed that the defendant is presumed to have fulfilled and performed all of the obligations and duties resting upon it, and before the plaintiff can recover in this action she must establish to your satisfaction, by a preponderance of all the evidence in the case, that the defendant herein was negligent in manner and form as specified in her said complaint, and that the said negligence of the defendant was the proximate cause of the injury to the plaintiff, if 'any, as ‘proximate cause’ is defined in these instructions.”

Plaintiff objected to the giving of the instruction as follows: “As to that we object for in this particular case when the unusual turnover is proven and not disputed, the relation of carrier and passenger and the law relative thereto shifts the burden of proof to the defendant to show that it was not negligent, and that there is no duty remaining on the plaintiff to carry the burden further than the physical facts that are shown by the undisputed evidence and are admitted to have happened in this case. We have a further objection on the instruction on the ground that there is no presumption in this case that the defendant is presumed to have fulfilled and performed all the obligations and duties resting upon it.”

The res ipsa loquitur doctrine simply stated is this: That when an instrumentality which causes injury, without any fault of the injured person, is under the exclusive control of the defendant at the time of the injury, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, then the law infers negligence on the part of the one in control as the cause of the injury. The doctrine is especially applicable when there exists the relationship of passenger and carrier and applies to carriers by bus where injury results from overturning of the bus. 7 N. C. C. A. (n. s.), pp. 658, et seq.

The instruction above quoted is directly contrary to the res ipsa loquitur doctrine and hence eontsitutes reversible error unless for some reason the doctrine does not apply to this case. Defendant contends that it does not apply because plaintiff pleaded and proved specific acts of negligence and that the courts hold the doctrine does not apply under such circumstances. The courts are not in agreement as to what effect the pleading of specific acts of negligence has upon plaintiff’s right to rely on the doctrine of res ipsa loquitur. 38 Am. Jur., Negligence, sec. 305, p. 1001.

We agree with plaintiff that the allegations of negligence in this case are general and not specific. The case is very similar to that of Francisco v. Circle Tours Sightseeing Co., 125 Or. 80, 265 Pac. 801, 802. There the allegations were: “That when said automobile was a few miles west of the ‘Columbia Gorge Hotel’ in said county, the defendant carelessly, negligently, and recklessly drove said automobile off the said highway and into a ditch which paralleled said highway, thereby causing the said automobile to be violently tipped to its right side, all of which resulted in severe and permanent injuries to the plaintiff, the same being hereinafter more specifically set forth.” The court held that the doctrine had application.

To the same effect under similar allegations are: Vonault v. O’Rourke, supra, 97 Mont. 92, 33 Pac. (2d) 535; Jianou v. Pickwick Stages System, 111 Cal. App. 754, 296 Pac. 108; and Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S. W. 932, 132 Am. St. Rep. 588; and compare Leet v. Union Pacific R. Co., 25 Cal. (2d) 605, 155 Pac. (2d) 42, 158 A. L. R. 1008.

Defendant contends that the proof offered by plaintiff shows specific acts of negligence and that in consequence the doctrine of res ipsa loquitur has no application. The court in the Price Case, supra [220 Mo. 435, 119 S. W. 937], discussed this question and said: “Nor are we impressed with the contention made that, because plaintiff on her case in chief put in proof of some specific acts of negligence, she is thereby precluded from the presumption of negligence to which she was entitled under her petition, it being one charging negligence in general terms and not specifically. In so doing she assumed a burden that she did not have to assume in making out a prima facie case, but it does not lose [her] the right of resting upon the presumption, if the evidence so introduced does not clearly show what did cause the accident. The rule is well stated by the Supreme Court of Massachusetts, in Cassady v. Old Colony Street Railway Co., 184 Mass. [156] 163, 68 N. E. [10] 12 (63 L. R. A. 285): ‘The defendant also contends that, even if originally the doctrine would have been applicable, the plaintiff had lost or waived her rights under that doctrine because, instead of resting her case solely upon it, she undertook to go further, and show particularly the cause of the accident. This position is not tenable. It is true that, where the evidence shows the precise cause of the accident, as in Winship v. New York, New Haven & Hartford R. R. Co., 170 Mass. 464, 49 N. E. 647, and Buckland v. New York, N. H. & H. R. R. Co., 181 Mass. 3, 62 N. E. 955, and similar cases, there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been if it had not been shown; but if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it.’ * * * A mere attempt to prove negligent acts hardly justifies the conclusion that a plaintiff knows the cause of the accident.” This case was followed in the later case of Smith v. Creve Coeur Drayage & Motorbus Co., 220 Mo. App. 1122, 296 S. W. 457. And see Powell v. St. Joseph Ry., Light, Heat & Power Co., 336 Mo. 1016, 81 S. W. (2d) 957.

The applicable rule is succinctly stated in Greyhound Lines, Inc., v. Patterson, 14 Tenn. App. 652, 657, as follows: “Where res ipsa loquitur is otherwise applicable, a plaintiff does not lose the benefit of that presumption by alleging specific acts of negligence of the carrier which he fails to prove (Nashville Interurban Railway Co. v. Gregory, 137 Tenn. 422, 433, 193 S. W. 1053), or by introducing evidence tending to show specific acts of negligence which caused the accident resulting in injury to the plaintiff, if at the close of the evidence the cause does not clearly appear, or if there is a dispute as to what it was. Smith v. Creve Coeur Drayage & Motorbus Co. [220 Mo. App. 1122], 296 S. W. 457; Malone v. Greyhound Lines, Inc. (Mo. App.), 22 S. W. (2d) 199; Price v. Metropolitan Street Railway Co., 220 Mo. 435, 119 S. W. 932, 132 Am. St. R[ep.] 588, 600; Cassady v. Old Colony Street Railway Co., 184 Mass. 156 [, 68 N. E. 10], 63 L. R. A. 285. proved, as they did, that they were injured by the overturning of defendant’s bus under the circumstances shown in their testimony, and their evidence did not disclose the proximate cause of the accident, they were entitled to a verdict in their favor, unless the defendant proved that its negligence did not cause the injury to the plaintiffs, and that the exercise of due care on its part could not have prevented the injury. [Illinois Cent.] Railroad [Co.] v. Kuhn, supra [107 Tenn. 106, 112, 64 S. W. 202] ; 5 R. C. L., p. 76; 20 R. C. L., p. 187, 1 Berry on Automobiles (6th Ed.), sec. 724, p. 600; Stegman v. People’s Motorbus Co. (Mo. App.), 297 S. W. 189, 192; Annotation, 45 A. L. R., p. 387.”

“It follows from the rules we have stated that when plaintiffs

Here it is true that -plaintiff submitted proof of a specific act of negligence, but it was denied by witnesses offered by the defendant. The evidence does not clearly show the precise cause of the overturning of the bus. The jury’s verdict would indicate that the act of negligence as to which plaintiff submitted some proof was not established as the cause of the accident.

In 38 Am. Jur., Negligence, sec 299, p. 996, it is said: “* * * there seems to be a unanimous feeling among the courts that have considered the question that the mere introduction, under general allegations of negligence, of evidence of specific acts of negligence which are not proved to be the precise cause of the injury, and thus to preclude any inference of negligence, does not prevent resort by the plaintiff to the presumption of negligence arising out of the doctrine.”

That part of the instruction above quoted which stated that defendant is “presumed to have fulfilled and performed all of the obligations and duties resting upon it, ’ ’ is unwarranted where, as here, there was an overturning of the bus. The usual presumption that a person has used ordinary care is overcome by the fact of the overturning of the bus. This raises an inference or presumption of negligence in its operation because in the ordinary course of events a bus does not overturn if the person in charge of its operation uses proper care.

Instructions embodying the presumption of due care are improper in a ease where the rule of res ipsa loquitur applies. Waite v. Pacific Gas & Electric Co., 56 Cal. App. (2d) 191, 132 Pac. (2d) 311; Pezzoni v. City and County of San Francisco, 101 Cal. App. (2d) 123, 225 Pac. (2d) 14, and cases there cited; and Maki v. Murray Hospital, 91 Mont. 251, 265, 7 Pac. (2d) 228.

Defendant contends that plaintiff is precluded from relying upon the doctrine of res ipsa loquitur because she made no objection to certain instructions given which placed the burden of proof upon her to prove the material allegations of her complaint by a preponderance of the evidence before she could recover. Such instruction is not objectionable, but upon another trial the court should go further and advise the jury that plaintiff has sustained that burden by showing the overturning of the bus which was concededly in the exclusive control and management of defendant, and resulting in injuries to her unless defendant has submitted evidence of equal or greater weight to overcome the inference of negligence. 38 Am. Jur., Negligence, sec. 363, note 20. By failing to object to the instructions placing the burden of proof upon plaintiff to establish the material allegations of the complaint, plaintiff was not precluded from relying on the doctrine of res ipsa loquitur.

The suggestion that plaintiff did not rely upon the doctrine of res ipsa loquitur in the court below and that she is now changing her theory is not sustained by the record. The doctrine is one that goes to the matter of proof rather than pleading, but it is noteworthy that plaintiff pleaded that defendant had the exclusive control of the bus and its operation and management and that she was a passenger for hire riding thereon at the time it overturned. The complaint was sufficient to apprise the defendant that plaintiff was relying on that doctrine.

The objection of plaintiff to instruction No. 20, above quoted, was specific that she was relying on the doctrine. The failure of plaintiff to offer an instruction embracing the doctrine under the circumstances here does not indicate that she was not relying on it: Had plaintiff submitted an instruction contrary to instruction No. 20 and had it been given and she prevailed in the action, the verdict would not stand in the face of conflicting instructions. Furthermore, the failure to offer an instruction covering the subject would not operate as a waiver of the right to object to one in conflict with the doctrine where, as here, the facts show the doctrine was applicable. It is to be noted that plaintiff is not contending that there was error in not instructing the jury on the doctrine of res ipsa loquitur, a point stressed in the dissenting opinion. Plaintiff’s complaint is that the court erroneously instructed the jury that the “defendant is presumed to have fulfilled and performed all of the obligations and duties resting upon it,” even though the bus over which it had exclusive control overturned causing alleged injuries to plaintiff, a passenger for hire. In other words, plaintiff’s complaint is directed to affirmative action taken over her objection in the giving of an erroneous instruction and not to what was left undone. Nor was plaintiff precluded from relying on this doctrine because of some evidence tending to show collision with the truck over which defendant had no control. See note in 83 A. L. R. 1166, and cases there cited.

We find nothing in the record which deprives plaintiff of the right to have the benefit of the doctrine of res ipsa loquitur nor of her right to object to an instruction contrary to the doctrine.

The judgment is reversed and the cause remanded for a new trial.

MR. JUSTICE METCALF, BOTTOMLY and FREEBOURN, concur.