Opinion
No. 28312.
April 15, 1952. Rehearing Denied May 19, 1952.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM K. KOERNER, J.
Henry D. Espy, St. Louis, for appellant.
Carroll J. Donohue, H. Jackson Daniel and Salkey Jones, St. Louis, Harold A. Donovan, St. Louis, of counsel, for respondent.
This is an action by Pruda Hall, as plaintiff, against the defendant, St. Louis Public Service Company, to recover damages for personal injuries alleged to have been sustained by plaintiff on November 6, 1948, while a passenger on one of defendant's streetcars. The trial below resulted in a verdict and judgment for defendant. From this judgment, plaintiff has appealed.
Recovery was sought on the theory of res ipsa loquitur, the petition alleging that while plaintiff was a passenger on one of defendant's streetcars she was caused to be seriously injured as a result of the carelessness and negligence of defendant in the operation of its said streetcar.
Plaintiff testified that on November 6, 1948, she boarded one of defendant's eastbound Hodiamont streetcars at Aubert Avenue, and while the streetcar was proceeding between Taylor and Newstead Avenues some glass fell on her. She stated: "Well, some glass fell in on my head and in my lap, and then the car * * made a sudden stop, and when it stopped, then it throwed me against the seat, kinda on the edge of it, and that made me bruise my leg * * * it stopped immediately * * * it was a sudden stop. * * * I was thrown up against the seat."
On cross-examination, plaintiff stated that she was seated on the righthand side of the car, she alone occupying a double seat, but was seated next to the aisle. She stated:
"I was sitting near the window but not up against the window. * * * I sat next to the aisle * * * the glass fell over me and somebody hollered * * * Fell in my lap * * * and on my head * * * when I was thrown up against the seat, that is when I bruised my side and leg * * * my right side.
* * * * * *
"Q. Do you know whether or not a rock hit the side of your face? A. No, it wasn't a rock.
"Q. Are you positive of that? A. Yes, I didn't see any.
* * * * * *
"Q. And this glass that struck you almost knocked you unconscious? A. That's right. * * * Glass was all over me, on my lap and on the side of the floor."
Plaintiff further testified that she imagined the streetcar was traveling about sixty miles per hour, and that it was stopped in about three or four feet.
There was evidence that plaintiff sustained an injury to her side and leg, and that two of her teeth were loosened as a result of the glass striking her. These teeth were afterwards extracted.
John Bergesch, the operator of the streetcar, testified on behalf of defendant. He stated that on the occasion in question he heard a crash and some one shout, "Stop the car," and that he also heard glass fall. He further stated that the streetcar had been moving about twenty miles per hour and that he made a normal stop, the car coming to a stop in about 130 feet. He then went back into the car to find out what the trouble was and saw a window broken on the right side of the car and a rock about the size of a hen's egg lying in the aisle next to the seat occupied by plaintiff. He stated that he asked Mrs. Hall what happened and she replied that a rock had hit her in the face. He said that Mrs. Hall also stated she was not hurt.
Velma Imogene Murray, who was a passenger on the car, testified:
"the car was going along as usual, I suppose, nothing unusual had happened and there was a crash, and right directly across the aisle from me the window was broken, and the best I can remember, there was a rock lying in the aisle, and this lady was sitting in the seat next to the window that was broken. * * * I did not see it (rock) come through the window * * * I saw it on the floor.
* * * * * *
"Q. Now, can you describe to the court and jury in what manner this streetcar came to a stop following this crash of the glass that you heard. A. Well, the best I can remember, it stopped just as it usually stops, as any streetcar usually stops."
Linton J. Harris, who was also a passenger on the car, testified on behalf of defendant, as follows:
"Well, we were going east on Hodiamont, and just past Taylor, I guess it was around the middle of the block, I heard a crash right in front of me, and I saw glass flying all over the passenger that was sitting, I think it was, two seats in front of me. I saw glass fly all over. * * * So I looked out of the window and I didn't see anyone; I mean, it was dark and I was unable to see anyone. So I got up out of my seat to look over, to see if the lady had glass in the eyes or something. She was excited, I guess. She didn't want any assistance, so I went on back. I saw glass all over her and on the floor.
* * * * * *
"Q. Did you see anything come through the window? A. All I saw was the glass fly all over.
* * * * * *
"Q. Did you see anything else? A. No.
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"Q. Now, will you describe to the court and the jury the manner in which this streetcar came to a stop? A. Well, as far as I can recall, it was a normal; I mean I don't recall it being snatchy myself; you know how a streetcar stops; it snatches."
Appellant assigns as error the action of the trial court in giving and reading to the jury Instruction No. 2. Said instruction reads as follows:
"If you find and believe from the evidence that the breaking of the streetcar window mentioned in the evidence was caused by a rock coming from outside of said car and through said window, and if you further find that in the exercise of the highest degree of care in the operation of said streetcar defendant had no reason to anticipate such occurrence, then plaintiff is not entitled to recover for any injury caused by the breaking of said window, and if you further find that following the breaking of said window the streetcar was brought to a normal stop and not with such suddenness as to endanger the safety of passengers thereon, then plaintiff is not entitled to recover for any injury caused by the stopping of said car."
Appellant contends that this instruction was not supported by the evidence in that there was no evidence that a rock came through the streetcar window. There is no merit to this contention.
The operator of the streetcar testified that he heard a crash, followed by the sound of falling glass. He also stated that plaintiff told him a rock hit her in the face. He also saw that the window was broken and observed a rock the size of a hen's egg in the aisle alongside the seat occupied by plaintiff. He saw glass on the plaintiff. Mrs. Murray testified she heard a crash, saw the broken window, and observed a rock on the floor. Plaintiff testified that she was hit on the side of the head by glass with sufficient force as to cause her to be rendered almost unconscious and to cause two teeth to be loosened. We believe that from the foregoing facts and circumstances it could be reasonably inferred that a rock from the outside came through said streetcar window.
Facts necessary to sustain a recovery or a defense in a civil action may be established by circumstantial evidence. Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43; Van Brock v. First National Bank in St. Louis, 349 Mo. 425, 161 S.W.2d 258; McCain v. Trenton Gas Electric Co., 222 Mo.App. 1146, 15 S.W.2d 970; Tueteberg v. St. Louis Public Service Co., Mo. App., 41 S.W.2d 956; Hasenjaeger v. Missouri-Kansas-Texas R. Co., 227 Mo. App. 413, 53 S.W.2d 1083; Barker v. Silverforb, Mo.App., 201 S.W.2d 408; Duley v. Coca-Cola Bottling Co., Mo.App., 232 S.W.2d 801.
It is also urged that the instruction is erroneous because it predicated negligence upon the "personal" anticipation of the operator of the bus, whereas, under the law, that question must be determined from what a very careful and prudent operator would "anticipate" under the same or similar circumstances.
In support of her contention appellant cites and relies upon the case of Beahan v. St. Louis Public Service Co., 361 Mo. 807, 237 S.W.2d 105. In that case, plaintiff, alighting from a bus, stepped into a hole in the sidewalk and fell. She brought suit for damages. There was a verdict and judgment for defendant, from which plaintiff appealed. The judgment was by the Supreme Court reversed on account of error in an instruction given for defendant.
The instruction in said Beahan case directed a verdict for defendant if its operator "having seen said defect, would not, in the exercise of the highest degree of care, have considered said defect to be dangerous * * *." [361 Mo. 807, 237 S.W.2d 106.] (Emphasis ours.) The Court held the instruction bad because it left the question of negligence to the personal judgment of the bus driver, whereas, under the law, that question must be determined by the jury from a consideration of what a reasonably prudent person would conclude under the same or similar circumstances.
No such vice appears here in Instruction No. 2. The instruction authorizes a verdict for defendant upon a finding that the breaking of the window was caused by a rock coming through the window, and that "defendant had no reason to anticipate such occurrence." This was an external standard which took no account of the personal equation or belief of the bus driver. If the instruction had told the jury to find for defendant if they found that in the exercise of the highest degree of care defendant did not anticipate such occurrence, a case analogous to the Beahan case would have been presented. Instead, the instruction authorized a verdict for defendant only if there existed no reason to anticipate such an occurrence. In following this instruction, the jury would not be authorized to predicate a finding of negligence upon the bus driver's opinion or belief. The point is without merit and is ruled against appellant.
Respondent contends that Instruction No. 2 was erroneous because it authorized a finding for defendant without requiring a finding that defendant exercised due care in respect to all duties with which it stood charged in carrying plaintiff as a passenger. In support of this contention, appellant cites Nix v. St. Louis Public Service Co., Mo.App., 228 S.W.2d 369; La Vigne v. St. Louis Public Service Co., Mo.Sup., 181 S.W.2d 541; and Scheipers v. Missouri-Pacific R. Co., Mo.Sup., 298 S.W. 51. In each of the foregoing cases it was held error to give a verdict-directing instruction which had the effect of limiting the field of permissible inferences under the rule of res ipsa loquitur. The rule is applicable where a case for the application of the doctrine of res ipsa loquitur is made, and not otherwise. In the ordinary case, where plaintiff can recover only by the proof of specific negligence, it is quite proper for defendant in his verdict-directing instruction to hypothesize facts which, if found to be true, will entitle him to a verdict. Berthold v. Danz, Mo.App., 27 S.W.2d 448; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Broderick v. Brennan, Mo.App., 170 S.W.2d 686.
Do the facts developed by plaintiff at the trial make a case for the application of the doctrine of res ipsa loquitur?
The fundamental rules defining the scope and limitations of the res ipsa loquitur doctrine are stated in McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641, as follows: "In general and on principle the doctrine res ipsa loquitur does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence."
Much has been written in elaboration of the above mentioned limitations. In Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13, it is pointed out that to make out a case for the application of the doctrine, the facts relied upon must be such as to reasonably exclude any other hypothesis than that of the negligence claimed; and that the inference sought to be drawn must be a legitimate one, and not resting on mere speculation or conjecture. See also, Grindstaff v. J. Goldberg Sons Structural Steel Co., 328 Mo. 72, 40 S.W.2d 702; Hart v. Emery-Bird-Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686, L.R.A. 1917E, 233; Sleater v. John R. Thompson Co., Mo.App., 173 S.W.2d 591. There should be in the case facts and circumstances from which one can reasonably conclude that, more often than not, an accident of the type involved is caused by failure to exercise reasonable care by the person in charge of the instrumentality. Pauley v. Baltimore Ohio R. Co., Mo.App., 215 S.W.2d 78.
Plaintiff offered evidence that she was a passenger on defendant's streetcar; that said streetcar was under the defendant's control; and that she was injured by the breaking of window glass. If she had stopped there, a res ipsa case would have been made. Pennifold v. St. Louis Public Service Co., Mo.App., 59 S.W.2d 713. However, plaintiff went further and, by her evidence, showed that the window glass was caused to be broken by the violent impact of some external force not shown to be under defendant's control. The external force was so great that it hurled the window glass against plaintiff's head with such force as to render her almost unconscious, and to loosen two of her teeth. Who put the force in motion is left to speculation and conjecture. The circumstances shown do not identify defendant as the wrongdoer, nor is there any affirmative fact shown which would negative, by fair inference, the theory that the force was put in motion by one for whose act defendant would not be liable. There is no common knowledge based upon human experience that such occurrences do not ordinarily happen if those in charge of such instrumentalities at such times are in the exercise of due care.
There was no fact in evidence to afford a basis for a reasonable inference that the accident was caused by any negligence of the defendant. It is more probable that it was not so caused. Such being the case, Instruction No. 2 cannot be said to be erroneous. It did not restrict the field of permissible inferences.
Finally, it is urged the instruction was erroneous because it did not require a finding that the defendant was free from negligence. The only issue for the jury was that submitted by plaintiff's Instruction No. 1, that is, that the streetcar was negligently stopped with such suddenness as to endanger the safety of passengers. Instruction No. 2 was a converse instruction submitting defendant's theory of the case. It was fully supported by the evidence, and the facts hypothesized, if found, would be a finding that defendant was free from negligence. There is no merit to appellant's complaint.
Finding no error in the record, the judgment appealed from is affirmed.
BENNICK, P. J., and RUDDY, J., concur.