author: WELBORN, Commissioner.

text:
    Eleanor A. ZACHER, Plaintiff-Respondent, v. MISSOURI REAL ESTATE & INSURANCE AGENCY, INC., Defendant-Appellant.
    No. 51021.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 13, 1965.

      Don B. Sommers, Gray & Sommers, St. Louis, for plaintiff-respondent.
    Burton H. Shostak, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendant-appellant.
   WELBORN, Commissioner.

This is an action for $45,000 damages by an employee of a tenant against the landlord for personal injuries alleged to have been sustained by plaintiff when she slipped and fell in a hallway under the control of and maintained by the landlord. The jury’s verdict was for defendant. The trial court granted plaintiff a new trial on the grounds of error in an instruction offered by the defendant. Defendant has appealed from the order awarding a new trial.

Plaintiff, Eleanor A. Zacher, was an officer and employee of the A to Z Service Company, a corporation engaged in the insurance business. A to Z was a tenant of the defendant, Missouri Real Estate & Insurance Agency, Inc., in a three-story office building owned by the defendant and located at 20 South Central Avenue in Clayton. A to Z occupied two rooms on the second floor of defendant’s building. There were other offices on the second floor occupied by other tenants and all of the offices were entered from a hallway which the defendant controlled and maintained for the common use of the tenants and their employees, customers and patrons.

Plaintiff slipped and fell in the second floor hallway on January 15, 1962. The theory of her cause of action was that water accumulated on the hallway floor during inclement weather and as a result the floor was made very slick and slippery, with the attendant probability that a person walking in the hallway would slip and fall and suffer injury; that the defendant knew or should have known of the condition, but failed to take steps to prevent the allegedly unsafe condition resulting from the accumulation of water on the floor in inclement weather.

Plaintiff slipped and fell as she was going to work at the A to Z office shortly after 9:00 a. m. Snow which had accumulated over a period of several days prior to the date of the accident remained on the ground. Snow and sleet had also fallen the preceding evening. A witness described conditions as “sloppy underneath because the day before * * * we had snow.” Plaintiff was driven to the vicinity of the rear entrance of the building on that morning by her husband. She was wearing low-heeled shoes and new galoshes with corrugated soles. She walked across a parking lot area and through the rear doorway and took the self-operated elevator to the second floor. According to the plaintiff she was not aware when she left the elevator on the second floor of the presence of water on the floor. She had taken a few steps toward her office when, as she stated, “I walked down the corridor and suddenly my feet slipped out from under me and I fell * * * I don’t know what happened * * * I can’t say I stepped in a puddle.” However, plaintiff stated that, as she lay on the floor after falling, she could see puddles of water on the floor elsewhere and she felt water on her coat and hair.

The flooring material on the second floor was a light brown or beige vinyl tile which had been installed in 1959 or 1960. It was waxed and polished regularly by the janitor, although less frequently in the winter than at other times. The defendant’s building manager who occupied an office on the third floor of the building testified that she had seen water tracked to the third floor of the building on inclement days. The janitor employed by the defendant testified that he had mopped slush from the second floor hallway the day before plaintiff fell. Plaintiff, her husband and another employee of A to Z testified that, on days of inclement weather prior to the accident, water was tracked into the building and onto the second floor. Other than plaintiff no one testified to the presence of water on the second floor at the time plaintiff fell.

On this appeal defendant contends the action of the trial court in awarding plaintiff a new trial was erroneous but that in any event plaintiff failed to make a sub-missible case.

“A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” 2 Restatement, Torts, Sec. 360, p. 976. See Annotation “Landlord’s liability for injury due to defects in inside passageways and chambers used in common by tenants.” 25 A.L.R.2d 444.

Viewing the evidence in the light most favorable to plaintiff, we are of the opinion that plaintiff did make a submissible case. There was undisputed evidence that the defendant’s employees were aware of the accumulation of water on the second floor hallway in periods of inclement weather.

“The presence of water alone (or water, dampness, wet slush or slime, as the evidence tends to show was present on the steps of defendant’s stairway in our case) on the variously covered surfaces of floors, or of the stairs in stores, has been recognized, in the physical settings and the shown circumstances of cases, as supporting the inference of a condition dangerous and not reasonably safe for the invitee’s use. Clifford v. F. W. Woolworth Co., Mo.App., 201 S.W.2d 416, certiorari quashed State ex rel. F. W. Woolworth Co. v. Bland, 357 Mo. 339, 208 S.W.2d 263; Bankhead v. First Nat. Bank in St. Louis, Mo.App., 137 S.W.2d 594, certiorari quashed State ex rel. First Nat. Bank in St. Louis v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Hubenschmidt v. S. S. Kresge Co., Mo.App., 115 S.W.2d 211; Belzer v. Sears, Roebuck & Co., Mo.App., 76 S.W.2d 701. Nor is it essential to a plaintiff’s case that there be evidence introduced that the water rendered the surface of the stairs slippery and dangerous. It is common knowledge that various surfaces are slippery when wet; and a jury may infer that a wet, slippery surface, in some circumstances, is not reasonably safe for an invitee’s use.” Stafford v. Fred Wolferman, Inc., 307 S.W.2d 468, 473.

As pointed out in Wolferman, a jury could reasonably infer that water on a floor surface of the type here involved would make the surface slippery and dangerous. Defendant’s employees in fact acknowledged that water would make the floor slippery.

In view of the defendant’s actual knowledge of the condition which developed during inclement weather, this is not an instance in which the length of time that the particular water had been on the floor was significant from the standpoint of notice to the defendant. Defendant had knowledge of the condition which arose during then existing weather conditions. It was for the jury to determine whether or not the condition which the accumulation of water produced was a dangerous one and whether or not the defendant, by the exercise of reasonable care, could have made the condition safe.

Of course, plaintiff to make a submissible case must show not only negligence on the part of defendant, but also causal connection between such negligence and her injury. Causation, along with the other elements of liability, may be shown by circumstantial evidence, although the matter cannot be left to mere speculation and conjecture. “The rule, however, does not require that there must be direct proof of the fact itself. This would often be impossible. It is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred.” Pentecost v. St. Louis Merchants’ Bridge Terminal R. R. Co., 334 Mo. 572, 66 S.W.2d 533, 536; Watt v. St. Louis Public Service Company, Mo.Sup., 354 S.W.2d 889, 891(1-3). See also Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756, 758-759(6); Clifford v. F. W. Woolworth Co., Mo.App., 201 S.W.2d 416, 421-422(1, 2).

Here, although plaintiff did not testify that she slipped in water and, in fact, acknowledged that she could not say that she “stepped in a puddle,” she did testify that, after she fell, she was lying in water and that it was a sufficient accumulation to make her coat and hands wet, as well as her hair from “mopping” the floor as she turned her head from side to side while lying where she had fallen. She could also see accumulations of water elsewhere so that there was no question as to evidence of the presence of water in the area where plaintiff fell and elsewhere in the second floor hallway.

In Smith v. Thompson, Mo.App., 258 S.W.2d 278, cited and relied upon by defendant, plaintiff was held not to have made a submissible case under the Federal Employers’ Liability Act on a charge of failure to provide a safe place to work because of inadequate fighting when he testified that he did not know what caused him to fall. In view of the plaintiff’s statement in that case, the court concluded that because there were so many other possible causes of the fall, not related to the negligence charged, causation would have been a mere matter of speculation. In this case, plaintiff likewise stated that she didn’t know what happened. However, she also testified to matters which would have excluded several possible causes of her fall, such as that she “stomped” her feet on a pad before entering the building; that she experienced no difficulty in walking from the entrance to the elevator; that she was wearing galoshes with corrugated soles over low-heeled shoes; that she was not walking hurriedly. She was, of course, not required to exclude all possible causes for which defendant would not be liable. “And causal connection may be, and often is, proved by showing facts and circumstances which ‘fairly suggest’ negligence as the proximate cause, in the light of ordinary experience.” Swanson v. Godwin, Mo.Sup., 327 S.W.2d 903, 910. Here, the facts proved, viewing plaintiff’s testimony in its most favorable light, were of such a nature and so related to each other that a jury, “in the light of ordinary experience,” could reasonably infer that the proximate cause of her fall was water which defendant had negligently permitted to accumulate on the hallway floor. The fact that plaintiff did not directly so testify does not preclude such a conclusion.

Defendant contends that plaintiff’s situation is almost identical with that of the plaintiff in Wilburn v. Southwestern Bell Telephone Company, Mo.App., 382 S.W.2d 49, in which the court concluded that there was no submissible case. However, Wilburn was an owner-invitee situation. Although the principles which govern liability in such a case and the present one are in many respects similar, the distinguishing feature is that the landlord may be subject to liability “irrespective of whether the lessee or those upon the land in his right know or do not know of the dangerous condition.” 2 Restatement, Torts, Sec. 360, Comment a, p. 976. This distinction is significant in the comparison of the present case with Wilburn. As pointed out in that case: “Fundamentally, the basis of a proprietor’s liability in a case of this nature is his superior knowledge of the defective condition of his premises which results in injury to his business invitee.” 382 S.W.2d 53. In Wilburn plaintiff testified that the floor was merely damp. She admitted that she observed no puddles of water on the floor. In such circumstances there was not sufficient evidence to charge the owner with knowledge of an unsafe condition on the premises. Nor could the court in Wilburn infer, as plaintiff argued, that there was a considerable amount of water on the floor because, if such had been the case, plaintiff, who had stood in the area where she fell for approximately five minutes, “would have had ample time and opportunity to have observed such a condition.” 382 S.W.2d 54. In effect, plaintiff’s dilemma in Wilburn was that, to show that there had been sufficient accumulation of water to notify the defendant of the potentially dangerous condition, she would have to have shown such knowledge of the condition on her own part as would have defeated her cause of action.

Here we are not faced with such a problem. Plaintiff’s knowledge of the condition would not defeat her cause of action, but would bear only upon the issue of her contributory negligence. Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 496. No contention is here made that plaintiff was guilty of contributory negligence as a matter of law.

Defendant also points to the statement in Wilburn (382 S.W.2d 55):

“Assuming however, that the dampness of the floor resulted from moisture carried in by others, we do not believe that the condition shown was sufficient to support a charge of negligence on the part of defendant. Defendant was not an insurer against all hazards, and on a day such as described by plaintiff it was a physical impossibility to keep the floor from becoming damp. Heidland v. Sears, Roebuck & Co., supra. The only way defendant could have maintained a perfectly dry floor for each customer would have been to have admitted them one by one, mopped up as each left, and allowed the floor to become absolutely dry (merely mopping would leave the floor as damp as that shown here) before admitting the next customer. Surely such a procedure would exact far more than the ordinary care which a proprietor is required to exercise.”

However, in this case, the jury might have found that an accumulation of water as distinguished from mere dampness could have been prevented in other ways than by mopping, such as, for example, by the placing of mats in strategic locations. Admittedly there were no mats or pads on the second floor hallway. Whether or not defendant’s actions measured up to the standard of care required was for the jury to determine.

Having determined that plaintiff made a submissible case we turn to the contention that the trial court erred in ordering a new trial. Plaintiff submitted her cause of action by an instruction which essentially told the jury:

“ * * * the second floor hallway of the building at 20 South Central, would become tracked with water on days of inclement weather and that such condition frequently reoccurred whenever there were days of inclement weather and if you find that by reason thereof, said hallway floor became slick and slippery * * * that on January IS, 1962, prior to the time that plaintiff entered * * * upon the second floor hallway * * *, water had been tracked onto the floor because of inclement weather conditions * * * she stepped upon an area of the floor upon which water had been tracked and that she thereby was caused to slip and fall and to sustain injuries * * * that the defendant knew or, in the exercise of ordinary care, could and should have known that the second floor hallway would become tracked with water and become in the aforesaid dangerous and not reasonably safe condition on days of inclement weather * * * (in time) to have prevented the accumulation of water thereon, or to have prevented said hallway floor from becoming slick and slippery under the circumstances * * * ” etc.

On behalf of the defendant the court gave Instruction No. 8 which read as follows:

“The Court instructs the jury that, under the law, defendant was not an insurer of the safety of plaintiff as she was walking down the corridor in question, but it was only required to exercise ordinary care to maintain said corridor in a reasonable (sic) safe manner for use by tenants and the employees of tenants, including plaintiff.
“Therefore, you are instructed that if you find from the evidence that the corridor in question was maintained in a reasonably safe manner, then the Court instructs you that, regardless of all other issues in the case, plaintiff is not entitled to recover and your verdict must be in favor of the defendant.”

In her motion for new trial the plaintiff attacked Instruction No. 8 on the grounds that the instruction gave the jury a roving commission, without factual hypothesis, to find that the defendant maintained the hall in a reasonably safe manner; that it gave the jury a roving commission to determine when the hallway was so maintained; that the instruction was not confined to the occasion in question and that it ignored and conflicted with the issues of negligence submitted in Instruction No. 2. The trial court sustained plaintiff’s motion for new trial because of errors alleged in the giving of Instruction No. 8. On this appeal defendant contends that the instruction read as a whole adequately limited defendant’s duty to the time in question; that it is a correct converse of an essential element of plaintiff’s case and does not conflict with plaintiff’s verdict-directing instruction; that when read as a whole and in connection with all other instructions it could not have misled the jury. By its original brief here defendant argued that the instruction in effect imposed the duty upon the defendant to maintain the hallway in a proper manner at all times. Plaintiff countered that the instruction properly read would excuse defendant from liability if the hallway was maintained in a safe manner at any time. By its reply brief defendant states: “ * * if we are wrong that the instruction refers to proper maintenance of the premises ‘at all times’ then the argument made by plaintiff that the instruction refers to ‘at any time’ is surely acceptable, since we find no difference in exercising ordinary care ‘at all times’ or ‘at any time’; * * Certainly insofar as the potential effect of this instruction is concerned, there is a difference whether it refers to the manner of maintenance of the hallway at all times or at any time. This argument sufficiently demonstrates, in our opinion, the ambiguity found in this instruction. Examination of the instruction certainly shows that it is not by its terms limited to the occasion in issue. Although the instruction does refer to the duty Owed plaintiff as she was walking down the' hallway, plaintiff was in the hallway on other occasions so that such limitation if applied to the second paragraph of the instruction does not necessarily limit the plaintiff’s duty at the time in question under the conditions then existing. The defendant defends the instruction as a converse of the issues raised by the plaintiff’s verdict-directing instruction, No. 2, of the defend-' ant’s failure to maintain the hallway in a reasonably safe condition. Such was defendant’s duty and such was the submission in plaintiff’s Instruction No. 2. However, Instruction No. 8 does not refer to the condition of the hallway but to the manner of its maintenance. We question that the words “condition” and “manner” are synonymous and that Instruction No. 8 can properly be considered a true converse instruction.

In any event the prejudicial effect of the instruction was a matter primarily for the trial court. Although the assignment of error in the motion for new trial did not expressly charge that the instruction was misleading, such was the effect of the specifications. In such circumstances this court looks with greater liberality on the action of the trial court in awarding a new trial. Coit v. Bentz, Mo.Sup., 348 S.W.2d 941, 945-946(8); Stone v. Engler, Mo.Sup., 349 S.W.2d 38, 41(2); Shaffer v. Sunray Mid-Continent Oil Company, Mo.Sup., 336 S.W.2d 102, 106(1, 2). We are not disposed in this case to set aside the action of the trial court.

The order of the trial court Is therefore affirmed.

HOUSER, C., dissents.

HIGGINS, G, concurs.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Walter ANDERSON, Original Plaintiff, Oliver F. Erbs, Executor Estate of Walter Anderson, Deceased, Later Substituted as Party Plaintiff, Respondent, v. ORSCHELN BROS. TRUCK LINES, INC., Appellant.
    No. 50880.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Motions for Rehearing and to Transfer to Court En Banc Denied Sept. 13, 1965.

      Jerome M. Steiner, Clayton, and Oliver F. Erbs, Kirkwood, John S. Marsalek, St. Louis, of counsel, for plaintiff-respondent.
    Chapman, Chapman & Litz, Wilton D. Chapman, Thomas W. Chapman, Arthur Litz, St. Louis, for defendant-appellant.
   HOUSER, Commissioner.

This is a damage suit for personal injuries sustained by Walter Anderson at the freight station of Orscheln Bros. Truck Lines, Inc., in St. Louis. Submitted on the theory of res ipsa loquitur, there was a jury verdict for plaintiff for $95,000. The truck line has appealed from the judgment entered upon the verdict. We have jurisdiction because the amount involved is in excess of $15,000.

Defendant’s first point on appeal is that Anderson failed to prove (a) that he was injured by an instrumentality in the exclusive control of defendant and (b) that defendant was in a superior position to know what caused the instrumentality to fall. This requires a statement of the evidence, which we relate in a manner favorable to Anderson, the prevailing party, accepting the evidence in his favor as true and rejecting all contrary evidence and inferences.

Anderson was seriously injured while attempting to climb up onto the platform of the dock to unload his employer’s trailer. A 150-pound steel cylindrical tank 4 or 5 feet long, 8 or 9 inches in diameter, fell in his direction, causing him to release his hold as he was ascending and to fall backwards onto the ground, where the tank struck Anderson’s body.

Defendant’s freight station consists of a warehouse and dock 200 to 300 feet long, extending north and south on 14th Street. The accident occurred on the west side of the dock. Along that side there are 14 doors, each 10-12 feet wide. Near the edge of the platform or floor of the dock there are a number of upright steel U-beams or posts. Some support the roof. Others serve as channels for the doors. The dock platform is approximately 49 inches higher than the surrounding area-way, on which tractor-trailer units drive in delivering merchandise to the freight station. This areaway is part of defendant’s premises. Along the main aisle of the dock, 10 or 12 feet back from the doors, defendant’s employees move freight from ’’one trailer to another. On the dock for use in unloading trailers defendant provides various kinds of equipment: hand trucks, wheel trucks, fork lifters, and cylindrical “oxygen” tanks such as the one that injured Anderson. These cylinders, which are used by defendant because of their greater strength, are placed under unusually heavy objects and used as rollers in bringing heavy, bulky merchandise from the trailers into the warehouse. Ordinary pipe would collapse under heavy loads; a small roller does not roll as readily as a large one in moving heavy objects. The cylinder in question was located and kept around the area of doors 11 and 12. At this particular location defendant transferred heavy objects, loads of steel, etc., because the terrain and height of the dock platform were more favorable. In moving heavy objects it is important not to have any “rise” between the dock and the trailer.

When a tractor-trailer operator cornos onto the premises to deliver merchandise he parks, goes to defendant’s office, which is located at the north end of the dock. There he gets his tickets or invoices checked ; gets “his bills okayed.” Then he backs his trailer in to an open dock, unloads, has one of defendant’s checkers count the packages or merchandise delivered and check the merchandise for damage, sign the ticket. Defendant’s receiving clerk then issues him a receipt. Defendant would not “accept anything from anybody without that bill having been okayed by the freight clerk.”

When necessary to unload an object of great weight the trucker asks defendant’s employees to bring a cylinder. Defendant’s employee then goes and gets the necessary cylinders, brings them out for use and places them in position under the heavy object. Defendant’s employees and the tractor-trailer operator, working together, then roll the heavy object from the trailer into the warehouse. Sometimes the merchandise is left standing on the tanks for later transfer from warehouse to trailer. At other times the cylinders are withdrawn by defendant’s employees and restored to their storage places by defendant’s employees — not by the tractor-trailer operators. The latter do not go get the equipment or take it back after its use. Defendant’s employees “put the equipment away.” Defendant’s receiving clerk “takes care of that.” It is “the practice of Or-scheln Brothers’ employees exclusively to use the equipment there for loading and unloading.” After a cylinder is used it is normally “set in the area” in an out-of-the-way place, normally and customarily in the inside or outside (in the hollow) of a U-beam.

On the day in question the terminal manager was in charge of the dock. He had supervision and control over defendant’s employees, of which about 30 were on duty at the terminal. Anderson, a tractor-trailer operator employed by Luecking Transfer Company, arrived at defendant’s terminal at 3 or 3:30 p.m. for the purpose of delivering some merchandise. He found a line of vehicles waiting to get a space in which to unload. After awaiting his turn he found a space — an aisle about 3 feet wide, which gave him sufficient room to deposit the small amount of freight he was delivering — at door 11. Three fourths of the space was full of freight. It was a busy dock, congested with a great deal of merchandise which had accumulated that day. There was a constant moving of the merchandise across the aisles between the bays and in the main aisle that ran the full length of the terminal.

Anderson backed his trailer in to the dock, parked it with its rear end flush against the edge of the dock. He applied his brakes, placed a wooden block under the left rear wheel to keep the equipment from moving forward, and then, facing the dock, attempted to get from the ground up onto the dock platform, from the driver’s side of the trailer. Except for the stairway located at the north end of the dock, which leads to the office, defendant provided no means for the drivers to mount the dock. Anderson tried to mount the dock in the same manner that he and the other drivers always did, i.e., throw themselves on the dock by vaulting, jumping, or climbing up on their equipment the best way they could, and then climbing from the equipment to the dock — the only way of getting up on the dock without using the steps at the end of the dock. An-derson looked up on the dock, did not see anything coming at him, put his left foot on the tire of the left rear wheel of the trailer, grabbed hold of the back end of his trailer with his left hand, threw his right foot up toward the dock, grabbed the U-beam to his right, at a point about a foot or two above the dock platform (he was able to get a good firm grasp on the post with his fingers and thumb), and started to pull himself up on the dock. When his right foot had moved to a position about 2/3 of the way between the ground and the level of the platform of the dock he looked up and saw this oxygen cylinder coming at him, not over a foot away from his face, falling at him at a 25-degree angle, with the top of the tank toward the south and the bottom to the north. The cylinder “was on the edge of the dock falling toward” him. He was then half-way up over the dock. Afraid that the cylinder would hit him in the head, Anderson turned’loose of the post with his right hand. The cylinder kept coming at him. He turned loose with his left hand and started “fighting the tank” as he fell backwards, trying to push it away. He fell on his back on the ground and the cylinder fell on him. Anderson did not see the cylinder until it was 1 foot away from his face. At no time while attempting to mount the dock did Anderson touch the cylinder. Anderson saw no one in the proximity of the place he was about to unload other than defendant’s employees. He saw some of them while he was on the ground. They were going up and down the main aisle on the dock, 10 or 12 feet back from the door, in the middle of the warehouse. Photographs of the place where the accident happened show a crack in the concrete floor of the platform. The crack runs from the post to the edge of the platform. There is some cracking, some broken pieces of concrete, at the edge of the dock. If the dock was in the condition shown by the photographs on the date of the accident, a cylinder standing on the cracks would not have stood firmly. To stand the cylinders up on end on the dock is seldom done because of the danger of falling over; it is “too dangerous.” Cylinders have been seen sitting up on the dock, although rarely.

Defendant’s general sales manager “saw it happen.” He was standing on the dock, 15 feet from the edge, about the center of the dock, south of the U-beam. While he could not see the tank from his position, he confirmed that there was a cylinder; that it fell on Anderson, as he was falling back, following an attempt on his part to reach for the post; that “when he went back the tank came out of the post with him.” He saw no tank passing or moving between him and Anderson; saw no one carrying a tank or drop a tank, and saw no one rolling a tank there.

On the matter of control over the instrumentality: Defendant argues that nowhere in the evidence is it shown that the cylinder was in the exclusive control of defendant; that any other truck driver having access to the loading dock “could have tampered with the cylinder, making it fall * * To the contrary, the evidence clearly shows that defendant had exclusive control over the cylinders. Defendant provided and stored these cylinders and kept and used them for a special purpose. Defendant’s employees exclusively produced them on request, placed them under merchandise, withdrew them after use and stored them adjacent to U-beams or in other out-of-the-way places. The truck drivers did not go and get the cylinders when needed, or put them away after use. The fact that others had access to the premises and might have tampered with the cylinders does not detract from the fact that defendant was in control of the cylinders. Answering negatively a like contention this court in McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 560 [2], 92 A.L.R. 641, pointed out that the requirement that the instrumentality be under the management and control of the defendant does not mean, and is not limited to, actual physical control, “but refers rather to the right of control at the time the negligence was committed.” Van Horn v. Pacific Refining & Roofing Co., 27 Cal.App. 105, 148 P. 951, 953, was cited, in which in overruling a similar contention the court stated that otherwise the doctrine of res ipsa loquitur could seldom if ever be given application. McCloskey held and we reaffirm that the res ipsa loquitur rule shifts the burden of evidence upon the point of the identity of the party legally responsible, and calls upon the owner to overcome the presumption against it arising out of its ownership, custody and general control of the building. We conclude that there was ample evidence that defendant had the right to control the cylinder at the time of Anderson’s injury.

On the question of superior knowledge: Defendant argues that Anderson, experienced in making deliveries at the dock, knew of the use of these cylinders; that a cylinder is not a complicated piece of machinery the arrangements of which are known only to defendant but an ordinary device without any concealed function not obvious to all persons, including Anderson; that Anderson was in close proximity to the cylinder and, with no one else about, was in a superior position to know what caused the cylinder to fall.

For res ipsa loquitur to apply the defendant must possess superior knowledge or means of information as to the cause of the occurrence. Zurich Insurance Co. v. Missouri Edison Co., Mo.Sup., 384 S.W.2d 623, 626, quoting from McCloskey v. Koplar, supra. Aside from the fact that Anderson knew these cylinders were supplied and used on the premises, it is evident that he knew nothing about the cause of the occurrence; all he knew was that he was suddenly confronted with a falling cylinder one foot away from his face. He had no comparable means of acquiring information as to when, where, and by whom it had been stored prior to the casualty; who, if anyone, was at or about the place where it was located immediately before the occurrence, or what caused it to fall. On the other hand, defendant had about 30 employees working on the premises, all of whom were subject to questioning by defendant immediately after the occurrence. Also, defendant kept records of incoming freight, which would have disclosed the names of truck drivers who had delivered heavy objects requiring the use of cylinders just prior to that time. From its employees, who were under the supervision of the terminal manager, and from its records, defendant had available to it sources and means of information not open to Ander-son, as to the place and manner in which the cylinder in question had been stored, and the cause of its fall. Specifically, defendant was in a superior position to ascertain when heavy merchandise requiring the use of cylinders last had been received at door 11 of the dock; where the cylinder in question had been placed after its last use at jdock 11 and how it had been disposed of: whether replaced in the hollow of a U-beam, or left standing on end on the dock, when and by whom, if left standing on its bottom, the condition of the floor at the place where it stood — whether the concrete floor was cracked, broken, etc. ; whether it was brushed against or tipped over by someone, and if so when, by whom, and under what circumstances.

Although defendant does not raise the point under “Points and Authorities” and therefore strictly speaking is not entitled to have it considered, its real complaint is that the mere fact that the cylinder fell is not sufficient to establish negligence, and that the circumstances do not warrant an inference of negligence on defendant’s part; that Anderson’s evidence leaves the cause of the accident to speculation, conjecture or surmise. This case comes within the category of falling objects, to which the rule is generally applied. 65 C.J.S. Negligence § 220(12); 38 Am.Jur. Negligence § 306; McCloskey v. Koplar, supra, [1]. Occurrences such as this one (heavy cylinders falling upon workers at freight stations) do not ordinarily happen if those in charge are exercising ordinary care. The cylinder was the property of defendant, and was part of the equipment used on the dock by defendant’s employees, for its own special purposes, and was under the control and management of the defendant. If left standing upright it was dangerous because of its weight and the tendency of a long narrow object to tip over. As argued by respondent, “Ordinary prudence would dictate that, in a busy working place like defendant’s dock, where men were moving about constantly with their attention concentrated upon their work, defendant should have provided a rack or similar device for the storage of the cylinder from which it could not fall, or otherwise defendant should have required its employees to lay it down [on its side] in a suitable place [and not stood upright] when it was not in use.” Defendant was prima facie responsible for the dangerous situation, whatever may have caused the cylinder to fall. The situation is similar in many respects to that in McCloskey v. Koplar, where a detached radiator fell on a patron in a crowded theatre, breaking his leg. Its fall was not explained by any witness. No persons were nearer than plaintiff, who was 3 feet from the radiator when it tipped over. He was not aware of having bumped or touched it and had not been sitting on it. Since such occurrences do not ordinarily happen when due care is used, and the radiator was the property of the theatre owners and a part of the equipment of the theatre under their control and management, we held that the facts raised an inference of negligence. The fact that the fall was unexplained is no impediment to the application of the doctrine, in a case where the inference of negligence arises. The doctrine was applied notwithstanding the occurrence happened for no apparent reason or known cause in McCloskey v. Koplar, supra, and in Kelly v. Laclede Real Estate & Inv. Co., 348 Mo. 407, 155 S.W.2d 90, 95, 138 A.L.R. 1065; Lamprecht v. Krueger, Mo.App., 46 S.W.2d 908; Garfinkel v. B. Nugent & Bro. Dry Goods Co., Mo.App., 25 S.W.2d 122; and Pollard v. J. J. Newberry Co., Mo.App., 228 S.W.2d 398. It should be applied in the circumstances of this case, which give rise to an inference of negligence in not securing this dangerous instrumentality in a rack, or in not causing it to lie prone on the platform, when not in use, or in allowing it to stand on end in a place with an insecure footing, or in allowing it to lean against merchandise on the dock or against the U-beam, in such a manner as to make it likely that it would fall and hurt someone.

Defendant’s second point on appeal is that Anderson was guilty of contributory negligence as a matter of law in (1) pulling the cylinder in question upon himself while attempting to climb upon the dock and (2) selecting a dangerous way to ascend the dock when there was a safe place provided by defendant.

(1) The Court cannot rule as a matter of law that Anderson negligently pulled the cylinder over on himself because Anderson testified positively that he did not touch the cylinder. This testimony is uncontradicted. No one testified that Anderson caught hold of the cylinder when he reached for the U-beam. Defendant’s general sales manager testified that from his position he could not see whether an-derson touched the cylinder. He did say that Anderson reached for the U-beam, and that his momentum was not sufficient for him to “make it”; that he missed the beam and that when he went back the tank came out of the post with him. Assuming but not deciding that this constituted substantial circumstantial evidence that Ander-son clutched the tank and caused it to topple over, the question of contributory negligence would still have been for the jury to decide, under proper instructions, and not for the court to declare as a matter of law. We note in passing that defendant did not consider the evidence of contributory negligence sufficiently substantial to offer a contributory negligence instruction.

(2) In order to convict Anderson of contributory'negligence as a matter of law in selecting a dangerous way it must appear that the way chosen was so unsafe that a person of ordinary prudence would not choose it. Rogers v. Tegarden Packing Co., 185 Mo.App. 99, 170 S.W. 675. Some of the cases apply the rule when the position taken is one of “imminent danger.” Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573, 575 [3]. As stated in 65 C.J.S. Negligence § 122, p. 733, “In order that one may he guilty of contributory negligence in selecting the hazardous course, it must appear that he knew and appreciated, or in the exercise of ordinary care should have known and appreciated, that the course chosen was not unlikely to result in his injury.” This record does not indicate that there was any imminent danger in mounting the dock in the manner Anderson chose, or that this method was so unsafe that a person of ordinary prudence would not choose it. Anderson testified that his method of getting up on the dock was “a formality” that he used for 31 years in getting up and down on docks. Apparently the drivers did not consider this method unsafe. There was testimony that all of them used Anderson’s same method of mounting the dock; that it was the customary and usual way; that it was done “out of habit,” and “pretty soon gets to be just a kind of automatic, conditioned reaction” of which the driver is not even aware, “like brushing your teeth in the morning.” One driver testified that even if defendant had provided steel steps or pipe ladders with handrails he would not necessarily have used them but would have continued mounting the dock as before; that if it was raining or if the steel steps were on the same side of the truck as the driver’s door he would use them, but that it would be a “matter of convenience,” and if the steel steps were on the other side of the truck he would not run around the truck to use them. There was no evidence that there was danger involved or that Ander-son was aware of any danger inherent in this method, or that in following his custom he was taking any risk, or that An-derson or other drivers had sustained injuries in attempting to scale the dock in this manner. There was no evidence from which it could be said as a matter of law that the danger of injury was imminent or obvious; that the method was so unsafe that a person of ordinary prudence would not choose it, or that it was not unlikely to result in injury. Instead, long experience over the years at this and other docks indicated to Anderson that this was a reasonably safe method. He testified that he had made at least 50 deliveries at this particular dock. There was no evidence that he sustained any injury or difficulty on any previous occasion. Furthermore, it was not the method of ascent that was dangerous. Anderson fell not because of the dangers inherent in the method of ascent adopted, but because of the sudden appearance of the oxygen cylinder flying in his face in mid-air. Certainly he had no reason to suspect that in mounting the dock in his customary way he would suddenly be confronted with the danger of being struck by an oxygen cylinder appearing out of nowhere. For us to reverse this judgment on the law point raised would require us to ignore the evidence and upset the established rules of law on this question.

Anderson’s contributory negligence in adopting this method was raised in defendant’s answer and forcibly argued to the jury by defendant’s counsel. Although defendant submitted no instruction on contributory negligence, plaintiff’s main verdict-directing instruction required a jury finding that in climbing on the platform Anderson was “exercising ordinary care for his own safety.” Defendant thus received the benefit of everything it was entitled to on the question of contributory negligence.

Defendant’s third point is that plaintiff’s evidence was contrary to physical laws and facts. Defendant claims that under Anderson’s version of the facts he would have the jury believe that the cylinder came through a solid steel 12" wide U-beam, and that considering the spaces and distances to which he testified it was a physical impossibility for Anderson to have pulled himself up with one hand on the left rear corner of the trailer and the other grasping the beam. Defendant’s contention is based in part upon the testimony of seven witnesses who under simulated circumstances attempted to mount the platform as Anderson said he had done, and who testified that it was physically impossible of accomplishment; and partly upon Anderson’s opinions, estimates and judgments as to spaces and distances, given after he had been in a hospital for 3 years and 3 months, and without having returned to the dock for further inspection prior to giving his testimony. Several times he stated on cross-examination that he had not measured the distance or space involved. The “physical facts” rule upon which defendant relies has no application where variable or doubtful estimates are made with respect to facts. Caffey v. St. Louis-S. F. Ry. Co., Mo.App., 292 S.W.2d 611, 615. The seven witnesses did not establish physical impossibility as a matter of law. The jury was privileged to disbelieve their testimony. The “physical facts” rule has no application where the credibility of witnesses is involved. Caffey v. St. Louis-S. F. Ry. Co., supra.

Defendant’s fourth and fifth points are that the trial court “erred in failing to grant defendant’s motion for jury view” and “erred in giving Instruction No. 1 offered by plaintiff.” Neither point states why it is contended that the court was wrong in its ruling, as required by Civil Rule 83.05(e), V.A.M.R., and therefore nothing has been preserved for review. Notwithstanding, we have considered the argument portion of defendant’s brief on these two contentions. On the question of jury view, it was a matter of discretion on the part of the court and there are cogent reasons why the action taken did not constitute an abuse of discretion. On Instruction No. 1 the claimed defects are technical, could not reasonably be said to have affected the final result, and are without merit.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri ex rel. William V. KAHLER, Appellant, v. STATE TAX COMMISSION of the State of Missouri, Respondent.
    No. 50822.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Opinion Modified on Court’s Own Motion Sept. 13, 1965.
    Motion for Rehearing or to Modify Opinion, or to Transfer to Court Bn Banc Denied Sept. 13, 1965.

      Jack C. Jones, John Franken, Carrollton, for appellant.
    Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

This is an appeal by William V. Kahler from a judgment of the circuit court affirming a decision of the State Tax Commission which upheld action of the County Board of Equalization fixing the assessed valuation of Kahler’s improved rural real estate at $28,800. The parties, and others concerned in the several steps taken to reach this court, will, for the sake of brevity, at times be referred to hereinafter as follows: Mr. Kahler, appellant or Kahler; the State Tax Commission, the Commission or respondent; the County Board of Equalization, the Board.

The property involved was assessed by the township assessor for tax purposes as of January 1, 1963, at in excess of $34,-000. After a hearing before the Board at which the assessment was reduced to $28,-800, Kahler appealed to the Commission. § 138.430(2). (All references to statutes are to RSMo 1959 and V.A.M.S.) A full hearing was held before the Commission after which were handed down findings of fact, conclusions of law, and a decision affirming the action of the Board. On appeal of this decision to the circuit court under the Administrative Procedure and Review Act (§§ 536.100 to 536.140) the court entered its judgment affirming the action of the Commission. It is from this judgment that Kahler now appeals to this court.

A transcript of the proceedings and all evidence heard by the Commission was filed in the circuit court and is part of the record here. The record discloses that the matter was tried before the Commission on the theory that the “fair market value” and the “true value in money” of the property were one and the same.

This court has jurisdiction because construction of the revenue laws of the state is involved. § 3, Article V, Constitution of Missouri, V.A.M.S.; Koplar v. State Tax Commission, Mo., 321 S.W.2d 686 [1] and cases there cited.

Appellant contended before the Commission and in the circuit court, and contends here that the assessment is contrary to and in violation of §§ 3 and 4(b) of Article X of the Contitution of Missouri, and Section 137.115 RSMo 1959, V.A.M.S. in that (1) it results in the taxes being not uniform upon real estate within the county; (2) the property was not assessed at its true value in money; (3) the decision of the Commission and the judgment of the court are not supported by competent substantial evidence, nor by any evidence; and, (4) the assessment, and the decision of the Commission, were arbitrary, discriminatory, capricious and unreasonable.

The Constitution of Missouri provides that property “shall be assessed for tax purposes at its value or such percentage of its value as may be fixed by law * * ” (§ 4(b) of Article X); that “[t]axes * * shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax” and that “the methods of determining the value of property for taxation shall be fixed by law.” (§ 3, Article X.) The method of determining the value is supplied by § 137.115 which provides that the assessor “ * * * shall assess the property at its true value in money * * *.”

Appellant’s basic complaints are that these constitutional and statutory provisions were violated because: (1) his property was assessed on the basis of the cost of construction of improvements, rather than its true value; (2) his property was not assessed at the same proportion or percentage of value as other real estate in the county; and, (3) the decision of the Commission is not supported by evidence.

The real estate involved is a 160-acre farm consisting of two 80-acre tracts divided by a north-south road in Mendon Township, Chariton County. Kahler purchased this farm in about 1958, for $32,000. At the time of the purchase it was improved with what has been said to be a house worth approximately $5,000, a dilapidated barn and one or two outbuildings. Prior to 1963, the property was assessed at $6,200. The existing house was razed and the barn repaired and improved. Kahler then began the construction of a new residence on the east 80 acres, completing it and three new buildings consisting of two 30' x 60' metal buildings with concrete floors and a new 30' x 50' frame barn shortly before the first of the year 1963. The new residence is a 34.5' x 70' one-story, shingled roof, frame home with attached garage. It has a 15' x 30' basement, six rooms and three baths and is apparently heated and cooled by a central gas system. In the words of several of the witnesses, “there is nothing else like it down our way.”

The evidence on which the Commission based its findings and decision, and on which the circuit court based its judgment, was substantially as follows: The township assessor testified that he had followed the practice each year (possibly as far back as 1929) of assessing real estate merely by copying from the assessment book of the prior year. He indicated that he had information from some source that he should assess real estate at 30% of its market value, but that he paid little, if any, attention to that information and “just took the previous assessment” without regard for the actual market value. Several individual tracts of land in the general neighborhood of the Kahler tract, and their respective assessed valuations, were called to his attention. Some of these tracts adjoined the Kahler tract. Regarding each of these he said the assessment was not based on the fair market value; that each was assessed at the same amount it had been “assessed for the last few years.” Asked about an improved one-acre tract adjoining the Kahler property, he expressed an opinion that its fair market value was $25,000. The record shows that this one-acre tract was assessed at $5,000, or 20% of its market value. He said he had assessed the Kahler property for tax purposes for the year 1963 at 30% of the combined known purchase price of the land and what he had been told was the cost of the construction of its improvements, rather than what he thought it was worth; indicating further that he thought its market value was less than its total cost. Sheriff Rice, a member of the county board of equalization, called as an adverse witness by appellant, testified that the Commission had instructed the Board to assess the Kahler property at 30% of its cost. • He also testified that Kahler had informed the Board that the cost of construction of the new home was $70,000; that he did not know the fair market value of the property; that the assessment by the Board was based solely on the cost, not on the market value. On examination by the Chairman of the Commission, the sheriff said he thought there was a difference between cost and fair market value of the Kahler property; that Kahler “would have a hard time selling it for what it cost him.”

Appellant produced four witnesses before the Commission who testified as to the fair market value of this property as of January 1, 1963. Three were real estate agents and one a banker. Their qualifications to testify as to the fair market value or true value in money of the property was not questioned. The highest value placed on this property by any one of these witnesses was $50,000.

In defense of the assessment by the Board, the Commission called to the stand and interrogated two members of the county court. Judge Guilford testified that appellant said the improvements cost him “somewhere around $70,000”; that the assessment made by the Board was based solely on 30% of the combined purchase price of the land and the cost of construction of the improvements. He also testified that he was not familiar with land values in the area of the Kahler property. Judge Hampton testified that the Board reduced the assessed valuation from $34,000 to $28,800. He further stated that this assessment was not based on the fair market value, hut on the purchase price of the land and what Kahler had said was the cost of construction of the improvements. He also said that some tracts of real estate in the county were assessed at 20% of value and others at 30%, depending on the circumstances. At one point he said the Kahler property was assessed at 30% of cost and at another he said it was assessed at 20%, indicating that the latter percentage was the same as that used in assessing his own property. When asked his opinion as to the sale value of the Kahler property he said, “I wouldn’t know; I wouldn’t venture to make a guess”, but when it was suggested that $50,000 or $60,000 would be its highest sale value he answered, “Well, that depends on your buyer; I’d say, yes.” In reply to an inquiry by another member of the Commission as to whether the witness thought he was qualified to testify “as to what a farm would be worth with that kind of improvements”, he said: “I am not.” In final analysis, neither of these witnesses, nor the assessor or sheriff, would say that the combined purchase price of the land and the cost of construction of the improvements was the fair market or true value in money of the Kahler property. In fact, the two members of the county court were of the opinion there was a distinction to be made between its cost and its value indicating they thought its actual value was less than what it had cost petitioner. Yet they went along with using the cost figure as a basis solely because, to paraphrase the words of Judge Hampton: it was our understanding that the State Tax Commission required that we use cost of construction as a basis. There was evidence before the Commission that the improvements on the property were insured for $111,000.

We recognize that neither this court nor the trial court may substitute its discretion for discretion vested in the Commission and should not set aside its findings unless such findings are “unsupported by competent and substantial evidence upon the whole record”; or are “for any other reason, unauthorized by law”; or are “arbitrary, capricious or unreasonable”; or unless the finding “involves an abuse of discretion.” § 536.140; Stein v. State Tax Commission, Mo., 379 S.W.2d 495, 498 [3].

It is our opinion that the decision of the Commission and the judgment of the trial court are wholly devoid of support by competent and substantial evidence. The only substantial evidence of the fair market or true value of this property came from appellant’s witnesses; the three real estate agents and a banker, whose testimony was that its value ranged between $48,000 and $50,000. The two county judges, in effect, disqualified themselves to express an opinion as to the value of the property as improved and partially disqualified themselves to even express an opinion of its value as unimproved; one said he was not familiar with land values in the area of the Kahler property and the other said he was not qualified to express an opinion as to the “worth” of this property “with that kind of improvements.” The collective result or consensus of the testimony of these two witnesses and that of the assessor and sheriff was that the Kahler property was assessed at some percentage of the combined purchase price of the land and the cost of construction of the improvements, rather than the fair market or true value. There was evidence that might support an assessment of the property as it existed at the time of purchase (in 1958) at a value based on its purchase price because that purchase was described by one or more of the witnesses as an “arms length, willing buyer and willing seller transaction.” Subsequent to that purchase one or more buildings were razed and new improvements constructed, and the Commission was concerned with its value as thus improved. The value of the property before it was improved with the new home and other buildings might be taken into consideration as one element in arriving at the total value of the whole property as improved, hut addition of the cost of construction of improvements to that element does not by simple arithmetic necessarily produce the fair market value of the whole. This court has said that the sale price of real estate is not conclusive as to its fair market value. Stein v. State Tax Commission, supra. In State ex rel. Platz v. State Tax Commission, Mo., 384 S.W.2d 565, 567 [3], the court assumed for the purposes of that opinion, “that an assessment of a residence based wholly on the single factor of cost of construction would not stand the test of substantiality of evidence.” We consider that the last-quoted statement should he and is the law of this state. In the instant case there are no other factors to consider other than the fact that the improvements were insured for $111,000, and we do not consider this fact and the cost of construction are together substantial evidence of the fair market value of the property under the whole record. The amount for which improvements are insured may he some evidence in support of their cost of construction and, conceivably, but not conclusively, of their insurable value; however, that is not to say it is perforce indicative of their true value, within the meaning of the law, where located as a part of the whole property. The Commission could not arbitrarily disregard the substantial and undisputed testimony of the three real estate agents and banker who were not impeached or shown by the record to have been disbelieved. We are mindful that “an administrative agency in determining a question of fact may pass upon the credibility of witnesses and where a claimant has the burden of proof may decide a claim solely upon a finding of lack of credibility of uncontradicted and unim-peached testimony offered in support of the claim,” Koplar v. State Tax Commission, Mo., supra, 321 S.W.2d 1. c. 694 [5], but where, as here, there was no finding of lack of credibility, the testimony may not be ignored. The Commission mentioned in its decision, merely in passing, that it “is the sole judge of the credibility of witnesses appearing before it”, but nowhere did it find that it did not believe any witness appearing before it as was done in Koplar, supra. Without the testimony of those four witnesses there was no subsantial evidence of the fair market value of the Kahler property.

Respondent contends that a presumption of validity and good faith attaches to the action of the assessor, the Board and the Commission and to the correctness of the value at which they assessed this property. This presumption, “however, was one of fact and was rebuttable and only served the place of evidence, until the [appellant], * * * came forward with the evidence hereinbefore set out. * * * The mentioned presumption could not be considered by the Commission in determining the issues before it in view of the evidence shown.” Koplar v. State Tax Commission, supra, l. c. 693-694 [3, 4].

Respondent makes the point in its brief that “So long as the valuation is not in excess of true value, in the judgment of the assessing authorities, a taxpayer has no grounds of complaint, except only in the event he can demonstrate that there has, in fact, been an intentional discrimination against him as compared with other property owners.” This point is followed with the argument that since appellant’s property is assessed at $28,800 — a valuation much less than its market or true value of $50,000 as fixed by his own witnesses — he has no ground on which to complain. This argument is not sound; it ignores or loses sight of the fact that taxes must be uniform on the same class of subjects within the territorial limits of the taxing authority. To demonstrate: the assessed valuation of $28,800 is 57.6% of $50,000. This is a far higher percentage of value than it is said that other property of the same class is assessed in the county. This theory, if applied, would destroy uniformity and discriminate against appellant.

Appellant says that his property should be assessed at $15,000; that this court should modify the Commission’s order and declare as a matter of law that this is its assessed value. We do not have the power or authority, under this record, to fix the value and assess the property at the amount suggested or any other specific amount. Koplar v. State Tax Commission, supra; Drey v. State Tax Commission, Mo., 345 S.W.2d 228, 236 [5].

The judgment is reversed and the cause remanded to the circuit court with directions to enter an order in conformity with this opinion, and to remand the cause to the State Tax Commission for reconsideration by it in accordance with the findings and judgment of this court.


author: HIGGINS, Commissioner.

text:
    Mary Jane RALLO, a Minor, by and Through Her Mother and Next Friend, Nancy Rallo, Appellant, v. Gabriel LANCIA, Respondent.
    No. 50769.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Motion for Rehearing or Transfer to Court En Banc Denied Sept. 13, 1965.
    James F. Koester, St. Louis, for plaintiff-appellant.
    Heege & Heege, Clayton, for respondent.
   HIGGINS, Commissioner.

Action for $25,000 damages for personal injuries. Verdict and judgment were for defendant and plaintiff has appealed.

According to plaintiff, at the time of the accident on January 13,1962, she was riding in the right rear seat of a 1951 Oldsmobile driven by her brother, Vito Rallo. There were two other passengers in the automobile, Joan Like in the left rear seat and Connie Spatafora in the right front seat. Vito, Joan, and defendant were all members of a singing group and were on their way to Riverview High School to perform. The streets were icy and slick and it was snowing. The automobile in which plaintiff was riding was traveling north on Toelle at 15 to 20 miles per hour. About one-half block from the intersection of Toelle with Shepley, the driver decreased his speed to 10 miles per hour. The accident occurred approximately one car length north of the intersection while plaintiff’s driver was going 5 to 10 miles per hour, and the car was struck in the rear by a 1950 DeSoto driven by defendant who had been following plaintiff’s car. Plaintiff did not see the car driven by defendant but she knew it was following, and her first knowledge of the accident was when her neck snapped, injuring her. No one was sure of the route and plaintiff’s driver, in getting to Riverview High School, intended to turn on Shepley but went past it when he failed to see it. Plaintiff did not know whether her driver gave any indication of an intention to turn or stop, and she stated that her driver made no sudden stop.

Defendant adduced evidence, in addition to his own testimony, from Joan Like and Connie Spatafora. Joan testified that the vehicle in which she and plaintiff were riding came to a stop in the center of the road; that the engine died, and that they were struck from behind by defendant while her driver was attempting to start his car. She described the stop as a “gradual,” “normal” stop, and testified that the driver applied his brakes a little past the intersection and that “nothing was vigorous or anything like that.” At a time when the vehicle was at a complete stop, she looked to the rear and saw defendant approximately five car lengths back, at which time she said, “Come on Vito, you have got to move. Gabe’s sliding on the ice.” She judged the car had been stopped “a few minutes.” There was no jar but the impact was sufficient to throw Connie into the dashboard where she struck her head. She judged defendant’s speed at 15 to 20 miles per hour and said his headlights were on. The road was straight, slightly downgrade, and there were no obstructions. Gabriel did not blow his horn.

Defendant’s version was that the accident happened about 8:00 to 8:30 p.m. He, too, was not familiar with the location of the school. He had taken a straight shot of liquor after his evening meal and the bottle was in the glove compartment of his car. There was a lot of snow and ice on the road and it was fairly dark. He had been following the automobile in which plaintiff was riding, traveling 15 to 20 miles per hour and about three car lengths back. He had seen the brake lights on the lead vehicle at other intersections, and he saw them operate as it slowed for the intersection where the accident occurred. He slowed when he saw the brake lights and when he no longer saw the brake lights he accelerated. When about halfway across the intersection he realized the lead vehicle was stopped; he applied his brakes and slid into the Rallo automobile; he saw no signal of a stop. He was going 10 to 15 miles per hour at impact. He said the brake lights of the Rallo car were not on at impact and he does not remember about the taillights. In the block preceding the accident his maximum speed was 20 miles per hour. He maintained a distance of 30 or 35 feet behind the lead vehicle. He could not say how long the lead vehicle was stopped before impact, but when he first saw it he was within 30 feet of it and he then applied his brakes. His headlights were not defective and were on low beam. The impact caused his front bumper to engage with the rear bumper of the Rallo car. The testimony of Connie Spatafora was cumulative of that previously recited.

Appellant’s sole point on appeal relates to Instruction No. 4 which she contends failed to hypothesize sufficient facts upon which the jury could base a verdict in favor of defendant. The instruction follows :

“The Court instructs * * * that it was the duty of Vito Rallo, the driver of the automobile in which plaintiff was riding, to exercise the highest degree of care in the operation of his said automobile while traveling north on Toelle Avenue, in that if the said driver * * * intended to stop his automobile on said highway, it was the duty of said Vito Rallo to give an adequate warning or signal of his intention to stop * * *.
“The Court further instructs * * * that if you find and believe from the evidence that while the said Vito Rallo was operating his said automobile northwardly on Toelle Avenue, the defendant Gabriel Lancia was also operating his automobile northwardly on said Toelle Avenue, and behind the automobile of the said Vito Rallo; and if you further find that the said Vito Rallo did stop his automobile while it was in front of and ahead of the automobile of the defendant Gabriel Lancia; and if you further find from the evidence that in so stopping his said automobile the said Vito Rallo did not give an adequate warning or signal of his intention to stop his said automobile; and if you further find that such failure on the part of the said Vito Rallo, if any, was the sole cause of the collision and injuries, if any, to plaintiff, without any negligence whatsoever on the part of the said Gabriel Lancia, then the Court instructs you that the plaintiff is not entitled to recover, and your verdict must be for the defendant * *

In Happy v. Blanton, Mo., 303 S.W.2d 633, 637 [3-6], we said: “* * * if the defendant undertakes to absolve himself from liability to plaintiff on the basis of sole cause negligence, he thereby assumes the burden of hypothesizing a statement of facts, supported by the evidence, from which a jury could find that not only did his negligence not contribute in causing plaintiff’s injuries, but in addition thereto that the sole proximate cause of plaintiff’s injuries was the negligence of someone other than him, and the hypoth-esization of facts in the instruction, or by proper reference- to other instructions, must be complete in both respects.” There are a number of disputed fact issues in this case and the hypothesis upon which the jury was permitted to make a finding of sole cause referred only to a finding that. Rallo stopped his car in front of and ahead of defendant’s car and that in so stopping he gave no adequate warning or signal. There are a number of omissions from the hypothesis which could have defined and specified the issues. There is no mention of the circumstances under which the stop was made such as the condition of the road, weather and lighting; there is no finding required as to the type of stop such as it being sudden, abrupt, gradual or regular; there is no reference to where the stop was made, speed of the vehicles, the distance separating them, the likelihood of collision if no signal was given, or the working order of taillights, brake lights, and headlights. There was not even a general reference to the many circumstances in evidence. Defendant’s freedom from negligence is likewise set forth without any hypothesis of facts from which such may be found, nor is there a reference to the negligence submitted against defendant in other instructions.

In Counts v. Kansas City Southern Railway Co., Mo., 340 S.W.2d 670, the same complaint was made, i.e., the instruction failed to hypothesize any facts in evidence which would create a sole cause situation or entitle defendant to a verdict. The instruction there said “that if you find * * * that on the occasion mentioned * * * the actions of plaintiff * * * were the sole cause of his injuries and that such injuries were not due to any negligence on the part of the defendant in any of the particulars set forth in other instructions * * *, your verdict must be for defendant.” The court held the instruction erroneous for the reason stated by plaintiff, saying: “We have uniformly held that instructions of that type should hypothesize the facts which, if true, would show that the plaintiff has no right to recover. See Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54, and cases cited therein. * * * In so ruling we stated, ‘ * * * a lawsuit should at some time be reduced to and decided upon definite and certain issues. In a jury trial the time for specifying fact issues is, at least, when the case is submitted to the jury. Only by so doing can it be possible for the jury to perform its proper function of deciding the facts of the case. If juries are to be required to decide cases on the fact issues actually developed in the trial, there can be no escape from the logic of this opinion (Watts v. Moussette, supra [337 Mo. 533, 85 S.W.2d 487]) requiring that such facts, as they must determine favorably in order to decide for defendant, on either a plaintiff’s or a third party’s sole cause negligence, must be stated in the instruction authorizing such a verdict. * * * [submitting such a defense * * * upon an abstract general legal proposition * * * would give the jury a roving commission as to facts and permit them to pass upon a question of law according to any theory they could construct or evolve in their own minds.’ 153 S.W.2d loc. cit. 57, 58.” 340 S.W.2d 1. c. 676 [4]. See also Ketcham v. Thomas, Mo., 283 S.W.2d 642, 651 [14]. Under, these principles Instruction No. 4 is erroneous because it fails to submit an adequate hypothesis for a determination of sole cause.

Respondent cites three cases under which he contends Instruction No. 4 contained sufficient hypothesis, but they are distinguishable from this case. In Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912, 917 [10-14], the sole cause instruction hypothesized findings that defendant was not negligent as defined in other instructions and that plaintiff was injured solely by the negligence of the driver of the panel truck in bringing his truck to a sudden stop in front of the line of traffic without any signal. That instruction hypothesized other instructions from which defendant’s freedom from negligence could be determined and it required a finding of a type of stop (sudden) and the circumstance of the stop (in front of traffic). In Lotshaw v. Vaughn, Mo., 380 S.W.2d 410, 412, the hypothesis required several fact determinations in order to convict plaintiff’s host of sole cause negligence. It required that the jury determine from the evidence if defendant was driving northward on Highway 30 when it was raining and dark and visibility was poor, and that as he drove he passed the car in which plaintiff was riding, stopped upon the paved portion of the highway, in a low place, and that such a stop was negligence, etc. There is no similar hypothesis in our case. In White v. Rohrer, Mo., 267 S.W.2d 31, 35 [5-9], the instruction submitted the hypothesis that plaintiff failed to extend his arm or give other timely warning of his intention to stop and that at the time in question plaintiff should have known that stopping without extending his arm or giving other timely warning of his intention would thereby be reasonably likely to create danger of collision under the facts and circumstances in evidence. By this instruction the jury was required to make a determination of plaintiff’s contributory negligence from the existence of lack of timely warning at a time when a lack of warning was likely to give rise to a collision. There are no such requirements in the present case.

Respondent contends also that Instruction No. 5, which required plaintiff to prove injury as a direct result of the accident, would defeat a recovery by plaintiff under any circumstances. We cannot say that the jury found for defendant under this submission and any attempt to do so would require unauthorized speculation.

It is unnecessary to consider the propriety of submitting any sole cause instruction because retrial will be under Missouri Approved Jury Instructions which excludes sole cause instructions. MAI 1.03.

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

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.