Opinion
No. 28277.
September 16, 1952.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, IVAN LEE HOLT, JR., J.
Mattingly, Boas Richards, Lloyd E. Boas, King G. McElroy, L. F. Stephens, St. Louis, for appellant.
Hullverson Richardson, Leland Jones, St. Louis, for respondent.
This is an action brought by Marie D. Oblamski against St. Louis Public Service Company and Color Ad and Engraving Co., a partnership, for personal injuries sustained while she was a passenger on a public service company bus.
Plaintiff pleaded general negligence against the public service company, alleging that the bus "was caused to suddenly and violently and in an extremely unusual manner jerk, jar and jolt and to collide with an automobile" owned and operated by the partnership. She charged various acts of primary negligence against the partnership, as well as negligence under the humanitarian doctrine.
The scene of the occurrence was the intersection of 14th Street and Clark Avenue in the City of St. Louis. Fourteenth Street runs north and south while Clark Avenue runs east and west. Both streets are between 35 and 45 feet wide. The bus was traveling north, the automobile, a 1937 Ford, was eastbound. The front of the bus struck the right rear fender of the automobile at a point in the southeast quarter of the intersection near the center line of Clark Avenue and near the east line of 14th Street.
Plaintiff noticed something unusual at a point south of Clark Avenue, before the bus reached the intersection, namely, a series of jerks. The bus was traveling "very fast." Something unusual happened when she got to the intersection. Suddenly she was "picked to her feet" and thrown forward out of her seat. She grabbed an upright bar but could not hold to it, spun completely around counter clockwise, and was "slammed down to the floor." The series of jerks did not throw her out of the seat. It was a "terriffic jerk, a final jerk" that "picked" her up to her feet and threw her. She did not know what caused the series of jerks or what caused the collision, did not see the automobile before the collision and at the time she was picked from her seat she did not know there had been a collision.
In further support of her case plaintiff produced three fellow passengers on the bus and the drivers of both vehicles. The other passengers variously described the series of jolts as "sudden," "severe," "very severe," "quite severe," "more severe than ever experienced," "repeated," sufficient to "shake everybody up in the bus."
Through other witnesses plaintiff offered evidence which tended to prove that the bus was traveling 25 to 30 miles per hour * * * "very fast" * * * as it approached Clark Avenue; that when the Ford automobile was 5 to 10 feet west of the west curb line of 14th Street the bus was 15 to 20 feet south of the intersection; that the bus driver saw the Ford when the Ford was 10 to 15 feet west of the west curb line of 14th Street; that there is a filling station on the southwest corner of the intersection and that a passenger seated in the bus could see as far as 50 feet west of the west curb line of 14th Street as the bus was approaching the intersection; that the Ford was traveling at a rate of speed variously estimated at 10 to 30 miles per hour as it approached, and that it did not swerve or slacken its speed as it crossed the intersection; that when the bus came to the intersection the Ford was half or three-fourths of the way across the intersection; that the bus driver "fanned" or applied air to the brakes 3 or 4 times before entering Clark Avenue, the last time when about 2 feet south of the south curb line of Clark Avenue and the next to the last time when 50 feet south of the intersection; that as the bus approached the intersection, and when about 15 to 20 feet south thereof, a sudden series of severe jerks began; that a sudden stop then occurred which threw plaintiff through space; that the jerks ended about the time the bus entered the intersection; that the bus entered the intersection at 5 miles per hour; that when the front end of the Ford was on the center line of 14th Street the front end of the bus was about 8 feet south of the center line of Clark Avenue and the bus was then traveling 5 miles per hour; that the bus driver sounded no warning; that the driver of the Ford at no time saw the bus; that the bus driver swerved 3 or 4 feet to his left in order to avoid striking the Ford but that the tip of the right front bumper of the bus touched the right rear fender of the automobile when the front end of the Ford was practically at the east curb line of 14th Street; that the bus was traveling at 2 to 3 miles per hour and the automobile 10 to 12 miles per hour at the time of the collision and that the impact was very light.
Instruction 1 authorized a verdict for plaintiff and against the public service company upon a finding that plaintiff was a passenger; that "there was a collision of the said bus and a motor vehicle at 14th and Clark Avenue and that the said bus prior thereto jolted and jarred in an unusual manner"; that this constituted negligence and that plaintiff's injuries were the proximate result thereof.
The jury returned a verdict for plaintiff and against the public service company for $5,500 and found the issues as between plaintiff and the partnership in favor of the partnership. Plaintiff did not appeal from the judgment entered in favor of the partnership. The public service company appealed from the judgment against it.
For its first point appellant contends that the court erred in giving Instruction 1 submitting the case against it on general negligence; that plaintiff's own case makes a submissible case of specific negligence, namely, failure to warn, failure to slacken and failure to stop the bus; that nothing about the accident or the manner in which it occurred was left in doubt. Appellant relies on the familiar rule that a plaintiff in a res ipsa loquitur case waives the benefit of that doctrine by introducing evidence showing fully the true cause or manner of the occurrence of the casualty.
We agree that plaintiff has waived her right to rely on the res ipsa doctrine, but not for the reasons advanced by appellant. Appellant's argument is based on the unfounded assumption that the collision caused the jerk. This theory cannot be sustained because it is opposed to the physical facts. The force which picked plaintiff from her seat was great. It was sufficient to pick up a 220 pound woman, hurl her through the air "like a flying trapeze" (as one witness put it) and slam her to the floor. Such force and violence, in the nature of things, could not have resulted from the very slight impact described in the evidence. The bus was traveling 2 or 3 miles per hour and the Ford 10 or 12 miles per hour at the time of the collision. The bus "just barely touched" the fender of the automobile. The collision was described as "negligible," "slight," "not much" of an impact — "no jar whatsoever." If the impact changed the position of the Ford in the roadway it was but a slight turn. There was testimony that the jolts occurred before there was any possible contact between the vehicles. It stands uncontradicted that the impact did no damage to the bus and that the only damage to the Ford was the bending of a fender down onto the tire, calling for very minor repairs, the cost of which was estimated at $11. The only testimony from which the inference could be drawn that the collision caused the jerk is that of the witness Doris Goelzhauser which may be rejected in this connection as opposed to the uncontradicted physical facts.
Although the collision did not cause the jerk, we have concluded nevertheless that plaintiff's witness identified the precise cause of the jerk and demonstrated the specific negligence of the carrier. In the case at bar it was the duty of the operator of the bus approaching 14th and Clark Avenue, when he saw or could have seen the automobile approaching the intersection from the left at a right angle, and knew or should have known that the two vehicles were converging, to take cautionary steps to avoid injury to his passengers. It was his duty to issue a warning to alert the oblivious driver of the automobile, or to so regulate and reduce the speed of the bus that it could be decelerated or stopped gradually and with safety to the passengers if danger of collision with the automobile should thereafter arise. Plaintiff proved that no such warning was issued and there was evidence from which the jury could find that defendant, through its operator, was guilty of actionable negligence after he saw or could have seen the automobile, in that he permitted the bus to continue at an excessive rate of speed until it was only a few feet from the intersection before any substantial effort was made to slacken the speed of the bus. He thus placed it beyond his power to decelerate with safety, and as he neared the intersection, confronted with an emergency of his own creation, a sudden and sharp application of the brakes was made necessary in order to avoid a violent collision with the automobile.
The operator testified that he "fanned the brakes" 3 or 4 times before the collision. The series of jerks and jolts occurred concurrently with the fanning of the brakes, i. e. as the bus approached the intersection, and the evidence supports the conclusion that the "final, terrific" jerk occurred at the last application of the brakes, 2 feet south of the south line of Clark Avenue. The bus was traveling 25 to 30 miles per hour as it approached the intersection and only 2 or 3 miles per hour at the time of the collision. It is evident that a rapid deceleration in the speed of the bus took place in a comparatively short distance. The fanning of the brakes was described by the bus driver as a light momentary application of the air. The jury could accept this description and thus account for the series of jolts which were not severe enough to dislodge plaintiff from her seat. The jury, however, was not obliged to accept and could reject the bus driver's testimony that the bus was brought to a stop without jerking or jarring and that the brakes were not applied sharply. Given the evidence that the bus was approaching the intersection at an excessive speed, that the bus driver applied the air brakes, that the bus was rapidly slowed down, and that concurrently therewith there was a final, terrific jerk, the jury could conclude that the jerk was caused by a sudden, forceful and improper application of the brakes. No other inference as to the cause of the jerk could reasonably be drawn. See Williams v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 659, in which the jerk was caused by acceleration instead of deceleration.
The sudden application of the brakes in itself was not culpable under the circumstances, for doubtless any reasonable person confronted with such an emergency would have made a full application of the brakes. But an emergency or sudden peril which arises does not excuse if the emergency resulted from defendant's own negligence. Hall v. St. Louis-San Francisco R. Co., Mo.Sup., 240 S.W. 175, 177; Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477, 480; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, loc. cit. 547. The actionable negligence involved was the failure to warn the driver of the automobile, and the excessive speed of the bus, antecedent to the arising of the emergency, which precipitated a situation where the bus driver, in effect, was compelled to apply the brakes forcibly. Windsor v. McKee, Mo.App., 22 S.W.2d 65, loc. cit. 67, points out the difference between a negligent act creating an emergency and a non-negligent act taken after an emergency arises.
Where a plaintiff knows the cause of an occurrence and demonstrates that cause to the jury, he cannot invoke the aid of the res ipsa loquitur rule of evidence which excuses lack of precision in the proof of negligence, for that rule is reserved for those whose knowledge of the cause of the occurrence is lacking or necessarily inferior to that of those who manage the instrumentality. Duncker v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 64, loc. cit. 70. Plaintiff through her witnesses knew as much about the cause of the collision as appellant. From the five witnesses produced by plaintiff who testified to the surrounding facts it cannot be said that she did not make a submissible issue of specific negligence against defendant. Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599, loc. cit. 603. Plaintiff having proved failure to warn, and plaintiff's evidence having clearly shown excessive speed which made it impossible to slacken the speed of the bus with safety to the passengers after the necessity for action arose, debar plaintiff from the benefit of the inference which the res ipsa loquitur rule affords. Berry v. Kansas City Public Service Co., 343 Mo. 474, 121 S.W.2d 825.
Respondent has cited a large number of cases in support of the proposition that the precise negligence of appellant was not shown and that the true cause of the collision was left in doubt. Without undertaking to analyze and harmonize these cases in this opinion, it should be said that we have examined them with care but have not found them controlling under the facts revealed in this record. Each case must rest upon its own facts in determining the application of the res ipsa doctrine and under the facts in this case plaintiff's Instruction 1 submitting general negligence as to the collision constituted error necessitating the reversal of the judgment and the remanding of the cause for a new trial.
There is no occasion to consider the other points raised because they will not necessarily arise on another trial.
The Commissioner recommends that the judgment be reversed and the cause remanded for a new trial.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, reversed and the cause remanded.
BENNICK, P. J., and ANDERSON and RUDDY, JJ., concur.