Appellant, in her complaint, alleged that, while a passenger on a bus operated by the respondent, she was injured, as the result of a sudden and violent stop made by the bus. She alleged several specific acts of negligence on the part of the bus driver, mainly, traveling at an excessive speed, failing to keep the bus under control, failing to keep a lookout for other vehicles using the street, and making an abrupt and violent stop.
Answering the complaint, respondent admitted that, at a point near the intersection of Third avenue and Pine street, the "bus came to a sudden stop," but denied that *Page 791 this occurred through the negligence of the operator of the bus, alleging that the stop was necessary in order to avoid a collision with an automobile, which swerved from an adjacent traffic lane into the path of the bus.
The issues presented by the pleadings were clearly stated. Respondent admitted that the bus made a sudden stop, but pleaded a necessity therefor. The evidence was directed to this issue. The driver of the bus testified that a car suddenly swerved in front of the bus, and that, to avoid colliding with the car, it was necessary to stop the bus as quickly as possible. His testimony was corroborated by some of the passengers. Witnesses called by appellant testified that they were riding on the bus and saw no car move to a position of danger in front of it. These issues were clearly presented to the jury by the court's instructions Nos. 7 and 9, quoted by the majority.
By instruction No. 8, also quoted in the majority opinion, to which respondent excepted, the trial court brought before the jury the doctrine of res ipsa loquitur, telling the jury that, if the "manner of the stopping of the bus was of such a nature as would not, in the ordinary course of events, happen," had the driver used proper and reasonable care, the jury might "infer from the fact that such a stop was made was due to the negligence of the defendant," and that a prima facie case was thereby established in favor of appellant. The court continued by instructing the jury that the burden then rested upon respondent to furnish an explanation of or rebuttal to the prima facie case by producing evidence of due care and precaution. Later, the trial court granted respondent city's motion for a new trial, upon the stated ground that the court had erred in giving to the jury instruction No. 8, referred to above.
It was admitted that the bus made a sudden stop, and that appellant was thrown to the floor of the bus and injured. Respondent took its position definitely upon one, and one only, excuse for the sudden stop and the resulting jolt of the car, namely, the unexpected appearance in front of the bus of an automobile, which had made a quick turn from an adjoining traffic lane. *Page 792
By instruction No. 7, the trial court had instructed the jury that, in order to recover judgment against respondent, appellant was required to show, by a fair preponderance of the evidence, that the jolt of the car was unusual, extraordinary, and unnecessary, and that it was the result of careless and negligent operation of the bus by respondent's employee.
By instruction No. 9, the jury were told that, if the driver of the bus was compelled to stop or slow the bus suddenly in order to avoid a collision with another vehicle, the operator of the bus was not guilty of negligence, and that appellant could not recover.
By its instructions Nos. 7 and 9, and other instructions, the court properly and adequately placed before the jury the issues which they were required to determine.
Appellant, by the evidence which she introduced, clearly made a case for the jury, by showing that the bus stopped with a serious and unusual jolt, and that she was thrown to the floor and injured.
Respondent city met this challenge and introduced evidence showing a reasonable cause for the sudden stop. This evidence was controverted by evidence introduced by appellant. Respondent definitely took the position that the sudden stop was necessary to avoid a dangerous collision with an automobile. There was no evidence whatever tending to show that the bus or its equipment was defective in any way.
Under the evidence, there was no place for an instruction bringing before the jury the doctrine of res ipsa loquitur. The factual issues were clearly defined by the pleadings and the evidence. Either the sudden stop of the bus was justified, by the testimony of the driver, supported by other testimony, or, under all the evidence in the case, the stop was not justified.
Instruction No. 8 permitted the jury to go beyond the evidence and "infer" that the sudden stop made by the bus was the result of the operator's negligence, regardless of whether or not any evidence had been introduced from which the jury could properly find that the operator of the *Page 793 bus had been guilty of any affirmative negligent act or had been guilty of negligence by failing to do something which he should have done, and that, by reason of such negligence, appellant was injured.
I am in accord with the majority in holding that, under the authorities, the giving of instruction No. 8 constituted prejudicial error and justified the granting of respondent's motion for a new trial.
I also agree with the majority in holding that instructions Nos. 4 and 6 were erroneous and should not be given upon a second trial of the action.
STEINERT and SIMPSON, JJ., concur with BEALS, J.