Opinion
No. 42925.
June 9, 1952.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, JOHN R. JAMES, J.
Trusty, Pugh Green, Guy W. Green, Jr., Kansas City, for appellant.
Charles L. Carr, Hale Houts, J. D. James, Hogsett, Trippe, Depping, Houts James, Kansas City, for respondent.
This is an action for $15,000 damages for personal injuries alleged to have been sustained by plaintiff as she was alighting from defendant's bus near the southeast corner of the intersection of Twelfth Street and Baltimore Avenue in Kansas City. A jury found for defendant, and plaintiff has appealed from the judgment entered upon the jury's verdict.
Plaintiff alleged and the trial court submitted to the jury an unusual and extraordinary occurrence under the res ipsa loquitur rule in that, as plaintiff was alighting from the bus, the rear "doors closed and struck her (plaintiff's) left foot or leg * * * before she had reasonable time or opportunity to get her left foot and leg in the clear of such doors if they should close." Defendant alleged that plaintiff was negligent in failing to watch her step; and in taking her weight off the lower step while leaving her foot in the doorway of said bus, although she knew or should have known "the doors worked automatically and would close upon her taking her weight off the step."
Plaintiff-appellant contends the trial court erred in instructing the jury, and in the admission of evidence.
A little after nine o'clock in the morning of June 18, 1947, plaintiff, a passenger on defendant's northbound Bus No. 921 (a 44 D Twin Coach) alighted from the vehicle when it stopped near and south of the southeast corner of the intersection of Twelfth Street, an east-west street, and Baltimore Avenue, a north-south street. The bus had been brought to a stop with its right side some four to six feet from the east curb of Baltimore. There was evidence that a truck was parked along the east side of Baltimore somewhat south of the intersection, and the bus operator found it necessary to stop the bus at an angle, the front end of the bus being nearer to the curb than the rear end thereof. "Quite a few" of the passengers were alighting by way of the front (side) door, and plaintiff decided to alight from the rear (side) door. It had been raining, and the streets were wet.
A passenger, in alighting from the rear door of defendant's Bus No. 921, takes two steps down to the door while on the inside of the bus, and one step down to the pavement or curb. The door is really two doors, "one on each side there"; when opened they are flush with the sides of the aperture or doorway. Defendant's witnesses testified that the door is so constructed that it may operate automatically. The automatic operation is in response to the weight of a passenger as the passenger in alighting steps down upon the (treadle) steps; and as the passenger steps down upon the pavement or curb and relieves the lower step of his weight, the door normally closes automatically after a "time lag" of not less than two seconds. There is a "door control lever" on the left-hand side of the operator by the use of which the operator, having brought the bus to a stop, may put the doors into operation. The front door is thus immediately opened mechanically or manually by the control lever, and the automatic device operating the rear door is also made ready to operate automatically when weight of twenty to twenty-five pounds or more is borne down upon the treadle steps. There is also an "emergency switch" or button whereby the operator can switch the control of the rear door over to the door-control lever and thereby control the closing of the rear door independently of the action of the automatic treadle-step control. The operator is instructed to use the emergency switch for "the purpose of protecting people (particularly old people or children) and keep them from getting caught in those doors." When the emergency switch is used "that rear door will remain open as long as you want it to." Operators are instructed to test the automatic controls before they "go out on the run." The automatic controls do "get out of adjustment." A careful "check" of the automatic door-operating equipment is made each twelve hundred fifty miles. Temperature may vary the "time lag" of the automatic treadle controls; if the time lag were adjusted in December and not readjusted until June, it "would be faster."
Plaintiff testified that as she was alighting and had stepped down on the lower step she noticed a depression, and some water on the surface of the street. She decided to try to avoid the water, and "just as I hesitated a moment, why, the door started closing and struck my foot." She had her right foot on the pavement and was holding on to the handle on the door. Her left foot was "kind of up off the step. I was just ready to step off." She was trying to decide how to step down, "but not to step in the water." The door "just knocked me right down, right out, and I fell partly on this right hip."
Plaintiff also testified that, having put her right foot down on the pavement, she was holding on to "that standard or safety bar"; she had lifted the weight off her left foot but "hadn't moved it down to the ground yet" at the time she was struck by the door. She was sure she had already lifted her weight off her left foot before the door struck her. It was a very few seconds after she lifted her left foot before she was struck by the door. She remembered telling the bus operator, after the occurrence, that she had "tripped" — she said she meant "by the door hitting" her left ankle. And she testified that she did not tell the operator she had "slipped."
Defendant introduced evidence tending to refute all inferences of negligence on its part. There was also evidence tending to show that plaintiff said she had "slipped" and fallen on the wet pavement.
Instruction B, given at the instance of defendant, is as follows:
"You are instructed that the plaintiff had a duty at all times in question to exercise ordinary care for her own safety in alighting from the bus in question, and if she failed to do so she was negligent.
"Therefore, if you find and believe from the evidence that the plaintiff knew that the bus doors worked automatically and would close when weight was taken off the step, and that plaintiff held her foot on the step after taking the weight off her foot, and was thereby negligent, if you so find, and said negligence, if so, directly contributed to cause her to fall, then you are instructed that the plaintiff cannot recover and your verdict must be for the defendant; and this is true although you also find the defendant was negligent as submitted in Instruction 2."
Plaintiff-appellant urges the instruction is in conflict with plaintiff's Instruction No. 2 which hypothesized an unusual occurrence as stated supra, and authorized an inference of negligence in form of hypotheses as suggested by this court in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001. Plaintiff says contributory negligence "has no place in a res ipsa loquitur case" — the " res ipsa loquitur facts themselves negative any negligence except for that of the defendant, including negligence on the part of plaintiff." In support of this argument, plaintiff cites Fitzjohn v. Ozark Mountain Distilling Co., 359 Mo. 154, 221 S.W.2d 146; Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Removich v. Bambrick Bros. Const. Co., 264 Mo. 43, 173 S.W. 686, 687, L.R.A. 1917E, 233; and other cases, in which the language of this court in the Removich case is stated and restated, as follows, "To make out a case for the application of this doctrine, the facts relied on ought to be such as reasonably to exclude all defensive inferences attributable by operation of law to the negligence of the plaintiff." We do not understand this quoted language to mean that a defendant in a res ipsa loquitur case may not allege, and introduce substantial evidence tending to show plaintiff's contributory negligence by which evidence, if believed, plaintiff's recovery is barred. We understand this language to mean that a plaintiff does not make out a prima facie case under the res ipsa loquitur doctrine where plaintiff's evidence does not reasonably exclude negligence of plaintiff as a contributing cause of his injury, that is, "`that he was injured, without any fault on his part.'" Fitzjohn v. Ozark Mountain Distilling Co., supra, [359 Mo. 154, 221 S.W.2d 149]; Charlton v. Lovelace, supra; Removich v. Bambrick Bros. Const. Co., supra; Hipsley v. Kansas City, St. J. C. B. Ry. Co., 88 Mo. 348.
We are of the opinion, however, that Instruction B is prejudicially erroneous in that the evidence did not support a finding of plaintiff's negligence as hypothesized.
Plaintiff had used defendant's buses twice a week for more than two years. She also said that "when you stepped there on that top step there is a treadle there and the doors" opened at that time. This evidence could not be substantial in tending to show plaintiff knew the rear door would close when her weight was taken off the steps at the time and place in question — the rear door did not always close automatically. We believe we cannot hold, as defendant-respondent contends we should, that it is a matter of common knowledge that exit doors of modern transit vehicles open and close automatically when passengers step on and off the steps. Certainly it could not be said plaintiff knew or that it is common knowledge the rear door of defendant's Bus No. 921 invariably closed automatically. As stated by defendant's witnesses, the rear door was so constructed as to work automatically, or the door could be closed manually and independently of the automatic device. Obviously plaintiff, assuming she knew the rear door could be manually or automatically closed, could not have known whether the door would be automatically closed when her weight was taken off the step, or whether the door would be manually closed at the will of the operator by using the emergency switch and the manual control. And, in any event, plaintiff was not obliged to anticipate that the door would be closed too soon and deprive her of a reasonable time or opportunity to safely alight. In the situation, plaintiff was obliged to alight from a bus which had been stopped several feet from the curb and she had to step down upon the wet surface of the street.
While plaintiff had the duty to exercise ordinary care for her own safety in alighting, Weber v. Kansas City Cable R. Co., 100 Mo. 194, 12 S.W. 804, 13 S.W. 587, 7 L.R.A. 819, she was entitled to rely upon the duty of defendant to exercise the appropriate precautions for her safety, which duty defendant owed for her, a passenger, until she had alighted from the bus, Lackey v. Missouri K.I.R. Co., 305 Mo. 260, 264 S.W. 807. Yet it will be noticed that defendant's Instruction B directed a verdict for defendant even though the evidence did not support the hypothesis that plaintiff knew the bus door would close automatically when her weight was taken off the step, and even though the evidence would support the inference that the rear door could and may have been manually closed at the time and place in question. Moreover, we think the instruction further authorized the jury to find plaintiff was negligent even though the jury believed that she held her foot on the step but momentarily and that the door was negligently closed instantaneously, or almost so, before plaintiff had a reasonable opportunity to step down upon the street — note that the jury was instructed, "this is true although you also find the defendant was negligent as submitted in Instruction 2."
The cause will be remanded because of error in Instruction B, but we shall briefly discuss other instructions given which plaintiff-appellant contends are erroneous.
The trial court at defendant's request gave Instruction A-1 as follows,
"If you find and believe from the evidence that the doors did not strike the plaintiff or that the doors closed in the ordinary and usual manner and without negligence on the part of defendant, then you are instructed that the plaintiff cannot recover and your verdict must be for the defendant."
As we understand, the instruction is designed to submit the converse of plaintiff's submitted res ipsa loquitur occurrence and to negative permissible inferences of defendant's negligence which might otherwise be drawn therefrom.
There could be no objection to the first alternative clause of the submission — "that the doors did not strike the plaintiff." However, the second alternative did not submit the converse of plaintiff's theory and submission. We bear in mind a jury might believe that the door did close in the ordinary and usual manner in the sense of the manner in which doors usually or ordinarily close. The unusual occurrence submitted by plaintiff was that the door, because of some kind of negligence of defendant, closed too soon, that is, without affording plaintiff a reasonable time to alight. Upon a new trial counsel for defendant may choose to redraft the Instruction "A-1" in view of what we have said.
Instruction C, given at defendant's instance, advised the jury "that the charge laid by the plaintiff against the defendant in this case is one of negligence. Recovery may not be had on a charge of negligence except when such charge is sustained by the preponderance, that is, the greater weight of the credible evidence. * * *" (Our italics.) The instruction continued in language and form substantially the same as that of Instruction No. 4 given at the defendant's instance in the case of Duncan v. St. Louis Public Service Co., 355 Mo. 733, 197 S.W.2d 964, 966, several times reiterating "`charge' of negligence." In the Duncan case, a res ipsa loquitur case, Instruction No. 4 was said not to be misleading when all the given instructions in that case were read together. Plaintiff's Instruction No. 1, given in the Duncan case, correctly told the jury that, if they found certain facts, they were authorized to find defendant was negligent. Since the only charge was general negligence, that is, since the jury could infer some kind of negligence of defendant from the shown circumstances of an unusual occurrence, it was said this court could not hold Instruction No. 4, when read with the other instructions including plaintiff's Instruction No. 1, would mislead the jury into believing they were required to find defendant guilty of specific negligence. However, we believe this court has not said a trial court's action in granting a new trial on the ground that such an instruction was misleading would not be upheld. This court in the Duncan case also criticized the Instruction No. 4 as being unnecessarily lengthy and repetitious. In Harke v. Haase, supra, this court suggested modifications of defendant's given Instruction "C" relating, in part, to the burden of proof; and the court remarked that the use of the term "charge of negligence" in Instruction "C" as originally drafted was improper in tending to mislead, since there is technically no specific charge of negligence in a res ipsa loquitur case. Since this court actually suggested and thereby approved the Instruction "C" as modified in the Harke case, it is difficult to understand why the use of an instruction in other form would be desirable in a res ipsa loquitur case.
In all probability the questions relating to the admissibility of evidence will not again arise upon a retrial of the cause, and we find it unnecessary to discuss them.
The judgment should be reversed, and the cause remanded.
It is so ordered.
LOZIER and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All of the Judges concur.