Bass v. Bi-State Development Agency, BI-STATE
| Decision Date | 11 October 1983 |
| Docket Number | No. 45923,BI-STATE,45923 |
| Citation | 661 S.W.2d 609 |
| Parties | James BASS, Plaintiff-Respondent, v.DEVELOPMENT AGENCY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William P. Russell and Ira M. Young, St. Louis, for defendant-appellant.
Stephen F. Meyerkord, St. Louis, for plaintiff-respondent.
James Bass, respondent, brought this action against Bi-State Development Agency, appellant, alleging negligence in an incident in which he was injured when a metal bolt was thrown through the window of a bus. A jury awarded respondent $82,000. Appellant maintains the trial court erred in denying its motion for a directed verdict. We reverse.
Appellant Bi-State Development Agency, a body corporate and politic organized under Chapter 70.370 RSMo, operates a public bus transportation system in the metropolitan St. Louis area.
On October 31, 1979, respondent James Bass, then 28 years old, was a passenger on one of appellant's buses. The bus was being operated on the Page-Wellston Line and was proceeding west on Washington Avenue. The bus stopped first at a bus stop on the northeast corner of the intersection with Jefferson, and then pulled up a few feet and stopped at the red light at the corner. When the bus stopped at the bus stop, respondent saw three or four boys on the north side of Washington and west of Jefferson. The boys attracted respondent's attention because it looked like they were holding something in their hands.
At trial, respondent testified he had seen other children throwing objects at the bus on the same route on three different occasions. The bus driver testified children had thrown objects at his bus in the past, but he had never had such occurrences on this particular route.
Respondent testified that when he saw the boys, he was afraid they would throw something at the bus. Respondent testified he tried to close his window, but was unable to do so, and instead moved over in his seat.
Just as the front end of the bus crossed Jefferson, the boys threw the first object at the bus. As the bus got almost to the middle of the block, the boys caught up with it. They ran alongside the bus for fifteen to twenty feet throwing more objects. One of the objects, a metal bolt, came through the window and hit respondent in the center of his left eye. Respondent testified that about twenty to twenty-five seconds passed from the time the first object struck the bus until he was hit.
The bus driver related that he did not see the group of boys standing on the west side of Jefferson and the north side of Washington as he approached Jefferson. The driver testified he was not aware the objects were being thrown at the bus until afterwards when someone on the bus called out to him to "stop the bus." None of the passengers on the bus had notified the driver of what was happening.
Washington Avenue, at its intersection with Jefferson Avenue, is six lanes wide; three eastbound and three westbound. Washington Avenue jogs or bends to the left about 100 feet west of the intersection and the street narrows from three to two lanes. As the bus crossed Jefferson Avenue, it had to angle to the left and merge with traffic in the two moving lanes. At that time, the driver's attention was focused on his left rearview mirror for other westbound traffic approaching from the rear.
By the time the bus driver learned of the incident, the bus had traveled several blocks west of where the injury to the respondent had occurred. The driver stopped the bus and called his "trouble dispatcher." He then walked to the rear of the bus to find out what had happened. A bus company supervisor came to the scene. A police officer also made an investigation. All of the other bus passengers had departed before the officer and supervisor arrived.
Respondent was taken by ambulance to Barnes Hospital, where an examination revealed a lid laceration and inflammation of the left eye. He remained under observation at the hospital until November 5, and returned November 7 as an out-patient for an eye operation. Respondent incurred medical expenses of $1,321.46 and lost wages of about $1,500.
The jury retired to deliberate at 11:50 a.m. and resumed deliberations after a one and one-half hour lunch break. At 3:48 p.m., the jury advised the court it was split 8-4 after five ballots, and was unable to reach a decision. After denying appellant's motion for a mistrial, the court instructed the jury to deliberate further. At 4:45 p.m., the jury returned a 10-2 verdict in favor of respondent for $82,000.
This appeal follows. Appellant's first point contends the trial court erred in denying its motion for a directed verdict because 1) the evidence was insufficient and failed to show the appellant knew of or reasonably could have anticipated the unlawful conduct of the boys throwing objects at the bus; 2) there was insufficient evidence to submit to the jury the issue of whether appellant's bus operator knew or reasonably should have known that objects were being thrown at the bus in time to have taken action to avoid the thrown object that struck respondent, and 3) the evidence was insufficient as a matter of law to establish that the alleged negligence of appellant's bus operator was the proximate cause of plaintiff's injury.
In considering appellant's first point, we must view the evidence in the light most favorable to the respondent. Dulley v. Berkley, 304 S.W.2d 878, 880 (Mo.1957).
We also are governed by the general rule that a verdict awarding damages for negligence must be supported by evidence that shows 1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; 2) the failure of the defendant to perform that duty, and 3) injury to the plaintiff resulting from such failure. Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 498 (Mo.App.1973).
The law imposes a strict duty of care as to common carriers, such as Bi-State. Jackson v. Bi-State Transit System, 550 S.W.2d 228 (Mo.App.1977). A common carrier is under a duty to exercise the highest degree of care to protect its passengers from all dangers that are known or by the exercise of the highest degree of care ought to be known. These dangers include the actions of third parties over whom the carrier has no control when injury reasonably could have been anticipated by the carrier or its employees. Id. at 232.
These strict principles of care and the imposition of liability are tempered by the fact...
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...likely that he would have heard a warning or would have seen the plaintiff in time to avoid the collision." Cf. Bass v. Bi-State Development Agency, 661 S.W.2d 609 (Mo.App.1983). Nor is recovery justified in this case by operation of the so-called "substantial factor" test of causation. The......
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