Opinion
No. 21768.
December 8, 1952.
APPEAL FROM THE JACKSON CIRCUIT COURT, JACKSON COUNTY, SAM WILCOX, SPECIAL JUDGE.
Charles L. Carr, R. C. Tucker, John Murphy, William H. Wilson, J. Gordon Siddens and Tucker, Murphy, Wilson Siddens, Kansas City, for appellant.
Warren A. Drummond and Sullivan Mann, Kansas City, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3,000 and defendant has appealed.
Plaintiff, Mrs. Van Volkinburgh, then 58 years of age, boarded one of defendant's trolley busses at 15th and Belmont, Kansas City, Missouri, as a fare-paying passenger, on the morning of October 7, 1948, on her way to work. When plaintiff boarded the bus it was crowded with passengers. She stood in the aisle, holding to a metal standard until the bus, traveling west, made a stop at the intersection of 15th and Hardesty. Some passengers left at that stop, but others came aboard so that the bus was again crowded and full of passengers in the aisles clear up to the front door. The bus operator then instructed those standing in the aisles to move back in the bus. Mrs. Van Volkinburgh was obeying this instruction by crowding her way toward the middle of the bus when it started forward to the west and shortly thereafter came to a sudden, violent stop, throwing plaintiff to the floor of the bus and knocking her unconscious. Defendant's evidence was that the operator was obliged to bring the bus to a quick stop in order to avoid colliding with a truck, eastbound on 15th Street, which suddenly made a left-hand turn and crossed immediately in front of the bus.
Defendant's first point relates to certain remarks made by plaintiff's counsel in his argument to the jury. Mr. Erwin, the operator of defendant's bus, was not present at the trial. Defendant could not locate him. His deposition had been taken by plaintiff. At the trial, which occurred on November 13, 1951, defendant offered the deposition in evidence. It was shown that a month previous to the trial Erwin had asked defendant "for a leave of absence and it was granted." The remarks complained of are:
"Mr. Drummond (plaintiff's counsel) Now, there are some very odd and mysterious things happened on the other side in this case. I can't imagine a circumstance, anything, that would arise that would permit the Street Car Company to let this man go on some leave of absence when they actually knew that this case was impending for trial.
"Mr. Tucker: I object to the line of argument as highly improper. There is no evidence the Street Car Company `let' this operator go, or get out —
"Mr. Drummond: Give him a leave of absence.
"Mr. Tucker: Let me finish my record. Counsel interrupted me. But the evidence is to the contrary, if your Honor please, that we made a diligent effort to locate him through his sister and his father and were unable to locate him, and we had to use the deposition that plaintiff took. So we object to the argument as improper and ask that the jury be instructed to disregard it.
"The Court: I believe it is incorrect. There is no evidence they let him go. However, you have a right to comment on his absence, if you desire.
"Mr. Drummond: They said that he took a leave of absence. I say, why did they let him take a leave of absence after this case had been pending a long time, after three years?
"Mr. Tucker: Same objection.
"The Court: Overruled.
"Mr. Drummond: He wasn't there to look people in the eye —
"Mr. Tucker: I object to that as improper, an improper inference, and ask that a mistrial be declared because of said statements.
"The Court: Overruled."
We have been unable to find a case involving this exact situation. However, in Wheeler v. Missouri Pacific R.Co., 322 Mo. 271, 18 S.W.2d 494, the Supreme Court approved the right of counsel to comment on similar conduct or motive of a defendant. In that case defendant's employee, Swenk, in charge of the crew when plaintiff was injured, was not produced in court but it was agreed by both counsel that if present he would testify in accordance with a written statement purporting to have been signed by him, which was read in evidence.
In his argument to the jury, plaintiff's counsel said:
"I think, gentlemen, that the reason this statement was read is that they didn't want to produce this man Swenk and subject him to cross-examination."
Defendant claimed that the remarks were improper because it was agreed that the witness would so testify if present in court. The Supreme Court said, 18 S.W.2d loc. cit. 497: "The agreement that Swenk, if present, would testify to certain facts did not deprive plaintiff's counsel of the right to comment upon his failure to testify * * *. As we read and understand the record, plaintiff's counsel was entirely within his rights in making the remarks complained of, in each instance, and the objections thereto were properly overruled."
If the testimony had been to the effect that the employee had voluntarily resigned, a different situation would be presented. Here defendant's own evidence showed that it had entered into an agreement with the operator for a leave of absence. There being evidence upon which to base the inference, we think plaintiff's counsel had the right to comment on the granting of the leave of absence and draw what inferences he deemed warranted. No complaint is made here that the verdict is excessive. In view of that fact, and of the well settled rule that declaring a mistrial rests largely within the discretion of the trial court, we cannot say that the court abused its discretion in this instance.
Another part of the argument which defendant asserts was prejudicial occurred during a discussion by plaintiff's counsel of the evidence produced by defendant in its effort to destroy the inference of negligence created by plaintiff's showing of an unexpected and violent stop. Plaintiff's counsel had been discussing the bus operator's testimony in an attempt to show that he could have easily avoided the sudden stop by slightly turning the bus to the left. Counsel then proceeded to argue that, except for the witness on the front step, that the witnesses produced by defendant furnished no credible evidence sufficient to overthrow the imputation of the operator's negligence. That, for the reason that they were not in a position in the crowded bus with passengers packed in the front vestibule between them and the street to see what was happening in front of the bus, and that they admitted that they saw none of the circumstances until after the bus made its sudden stop. The argument was further to the effect that, in its attempt to prove that the operator used due care and that the emergency was not of his making, defendant had called only one witness who had been standing in the front portion of the bus where a view could be had of the intersection, but had called several other witnesses who were in less advantageous positions, such as the rear of the bus, in the middle and on the side. It was at this point that defendant's counsel said: "We object to the defendant `picked out' witnesses on the back. Witnesses are just as available to one side as to the other. She had friends and acquaintances on the bus, and friends and acquaintances on the stand. To say we `picked' them out, that is a guess, an inference." "The Court: I think the inference is a little strong. Sustained." Defendant's counsel then moved for a mistrial, but was overruled by the court. Nothing in the argument of plaintiff's counsel commented on the failure of defendant to produce all the available witnesses, but the argument was plainly directed to the probative value of the testimony of those produced. This, together with the fact that the court sustained defendant's objection, makes it apparent to us that there is no real basis for defendant's present complaint.
Defendant claims error in the giving of Instruction No. 1, submitting the case on the res ipsa loquitur doctrine, because it is said that plaintiff's evidence proved specific negligence instead of general negligence.
In her petition plaintiff pleaded general negligence of defendant in the operation of its bus "by causing and permitting same to come to an unusually abrupt, violent, sudden and unexpected stop," by reason of which plaintiff was thrown to the floor with force and violence.
Plaintiff testified that the bus was "awfully crowded"; that "we was all moving up in the bus * * * and all at once, there was a terrible something that happened * * * just come to a sudden stop, and that is all I know." Never before had she experienced such a hard, violent stop in all her years riding the bus.
Mrs. Mary Burgess, a passenger, called by plaintiff, said that when the bus "stopped suddenly it threw everyone toward the front." Another passenger, Colleen Tucker, testified that the bus "stopped suddenly. It jerked me. I was standing up and I almost fell."
Miss Bergner, another passenger, called by defendant, said that the bus came to a sudden, violent stop with a "hard jolt and * * * several people were knocked around and swaying around."
There is no doubt that the foregoing evidence made a case for submission under the res ipsa loquitur doctrine. Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506; Semler v. Kansas City Public Service Co., 355 Mo. 388, 196 S.W.2d 197, 200.
However, defendant says that plaintiff produced additional evidence which established specific negligence and thus was not entitled to a res ipsa loquitur submission. The rule in this state is as stated in the Belding case, supra, 215 S.W.2d loc. cit. 510: "* * * that when the plaintiff, having pleaded a case of res ipsa loquitur, goes so far in his own evidence as to point out, and reveal his knowledge of, the specific act of negligence which was responsible for his injury, there is neither room nor necessity for the application of the doctrine. But on the other hand, even though the plaintiff's evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the doctrine, nor be deprived of the right to rely upon it in the submission of his case, if, after his evidence is in, `the true cause is still left in doubt or is not clearly shown'." Citing cases.
Defendant's whole argument on this point is summed up by the following statement in its brief: "We submit that the plaintiff passenger, * * * debarred herself from the right to recover under the res ipsa loquitur doctrine when she proved that the sudden stopping of the bus was caused by the operator, in avoiding contact with the vehicle crossing in front of the bus."
Plaintiff's evidence on the physical movements of the bus went no further than to describe the occurrence as a sudden, violent stop with a jerk or jolt, throwing plaintiff to the floor and causing passengers to be knocked around. Plaintiff herself testified that at the time the bus came to a stop, she was walking toward the rear and looking in that direction; that the bus driver said to her "I couldn't have done any worse if I had hit him," but that she did not know "what he was talking about." "He didn't say anything about a truck." All that plaintiff's witness, Mrs. Burgess knew about the truck was that some one on the bus said something about a truck running out but that she didn't remember what was said. The other passenger called by plaintiff, Colleen Tucker, did not see any truck but heard some comment by passengers about another car in the way, but all that she remembered was "that the word `truck' was mentioned."
To say the least, plaintiff's evidence, standing alone, did not "clearly" show the specific cause of the accident. The language used in the Semler decision fits the instant case. At loc. cit. 200 of 196 S.W.2d that opinion says:
"In the instant case plaintiff's evidence went to establish that the occasion for the motorman making the sudden stop was the operation of the motor vehicle across the path and immediately in front of the streetcar at a high rate of speed; but plaintiff did not go further and attempt to prove the specific negligent act of defendant (such as a failure to maintain a proper lookout or reversing the car instead of applying an emergency brake) in causing the streetcar to come to such a sudden and violent stop as to throw plaintiff backwards as described in the evidence."
What was said on the question here involved in two of the decisions upon which defendant relies has been disapproved by our Supreme Court in the case of Williams v. St. Louis Public Service Co., 253 S.W.2d 97. Other cases cited by defendant differ from the instant case upon their facts. The Court did not err in giving said Instruction No. 1.
It is next insisted that the court erred in giving Instruction No. 2, which defined defendant's duty toward plaintiff and also defined the terms "negligence" and "highest degree of care."
Without citation of any case considering an instruction of a similar nature, defendant asserts that it was an "abstract statement of law without application to the fact issues in the case," and that "it is an academic principle of law that mere abstract statements of law in an instruction are improper and where not accompanied by hypothesized facts are quite apt to confuse the jury." So far as we can find every authority that has considered a similar instruction has held not only that such an instruction is not an abstract statement of the law but that it serves a useful purpose in defining technical terms for the jury's guidance. This was pointed out by our Supreme Court in State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d loc. cit. 667, 669-671 and by this Court in Coats v. Old, 237 Mo.App. 353, 167 S.W.2d loc. cit. 652, 653-654. The instruction was not improper under all of the circumstances.
Defendant's last complaint is that it was error to refuse its Instruction D. By this instruction defendant sought to inject the issue of contributory negligence into the case. Contributory negligence was neither pleaded as a defense nor shown by the evidence. Thus refusal of this instruction was proper.
The judgment should be affirmed. It is so ordered.
All concur.