Beahan v. St. Louis Public Service Co.

• Decision Date: 02 July 1948
• Docket Number: No. 27429.,27429.
• Citation: 213 S.W.2d 253
• Parties: BEAHAN v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

213 S.W.2d 253

BEAHAN v. ST. LOUIS PUBLIC SERVICE CO.

No. 27429.

St. Louis Court of Appeals. Missouri.

July 2, 1948.

Rehearing Denied September 3, 1948.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be reported in State Reports."

Action by Zada Beahan against the St. Louis Public Service Company for personal injuries. Judgment for defendant, and plaintiff appeals.

Reversed and cause remanded.

Douglas H. Jones, Berthold, Jones & Bialson, and N. Murry Edwards, all of St. Louis, for appellant.

Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Zada Beahan, while alighting from a motorbus owned and operated by defendant, St. Louis Public Service Company. A trial to a jury resulted in a verdict and judgment in favor of defendant. Plaintiff filed a motion for a new trial, which, not being passed upon within ninety days, was deemed denied for all purposes. Laws Mo.1943, p. 389, sec. 118, Mo.R.S.A. § 847.118. She then gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.

Plaintiff asked damages in the sum of $7,500; and having been defeated at the trial, the amount claimed in her petition is to be taken as the amount in dispute for the purpose of fixing appellate jurisdiction over her appeal. Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449. The amount in dispute, exclusive of costs, is, but does not exceed, the sum of $7,500; and appellate jurisdiction is consequently vested in this court. Constitution of 1945, Art. V, Secs. 3, 13, Mo.R.S.A.

The accident happened at the regularly established bus stop at the southeast corner of Fourteenth Street and Washington Boulevard, in the City of St. Louis.

The space reserved for the bus stop extends far enough east of Fourteenth Street for two buses to occupy it simultaneously. On this occasion the bus upon which plaintiff was a passenger came to a stop near the end of the space with its exit door opposite 1326 Washington Boulevard. As it happened, there was a broken spot in the sidewalk at this point variously estimated as being from an inch to two and one-half inches deep at its deepest point, and extending back from the curb over a space of eight to ten inches square. Both the testimony and the photographs disclosed that the break was along a seam in the sidewalk where the blocks of concrete were joined together.

Plaintiff testified that while she had been accustomed to use buses regularly for the three and one-half years that she had been employed in the vicinity of the point of the accident, she had never before had occasion to alight from a bus at this particular place on the sidewalk. The driver testified that he had never observed the condition of the sidewalk before the time of plaintiff's injury, but afterwards took note of it from his position in the driver's seat, and tried to avoid it in stopping his bus for passengers to alight.

As plaintiff stepped down from the bus, she glanced towards the sidewalk, but failed to discover the break in its surface, and in fact did not actually see the broken area until after she had fallen and had been assisted to her feet by a couple of persons passing by. It was a conceded fact that plaintiff fell; and her own explanation was that as she stepped down upon the uneven surface, her foot was twisted in such a manner as to cause her to fall and sustain the injuries for which she seeks to be compensated in this proceeding.

The negligence pleaded and relied upon was the act of the driver in stopping the bus for plaintiff to alight at a point where the sidewalk was rough, uneven, unsafe, and dangerous, and in failing to warn plaintiff of such condition of the sidewalk.

Admitting its operation of the bus as a common carrier, defendant's answer was otherwise a mere general denial.

For her first point plaintiff argues that there was no substantial evidence to sustain the verdict for defendant; that defendant's liability appeared as a matter of law; and that this court should so declare, and should remand the case for a new trial as to damages only.

The law is indeed well settled that a street railway or bus company must exercise the highest degree of care in selecting a reasonably safe place for the discharge of its passengers, and that the relationship of passenger and carrier continues until the passenger has left the car or bus and is on the street or sidewalk in safety. Nor is it any the less the street railway or bus company's duty to exercise the highest degree of care to select such reasonably safe place that the street or sidewalk where it must discharge its passengers is outside its own control. If there is a defect in the street or sidewalk which is likely to cause injury to an alighting passenger, the company must stop its car or bus at a point beyond or short of the defect, or it must warn the passenger unless the danger confronting him is so glaring as to be as obvious to him as to the operator; and where it stops its car or bus at such a place that a passenger must alight at a point on the street or sidewalk which is defective and likely to result in injury, the company is guilty of negligence, and if the passenger is injured while so alighting, the company is liable for the damages incurred. Caley v. Kansas City, 226 Mo.App. 934, 48 S.W. 2d 25; Moses v. Kansas City Public Service Co., Mo.App., 188 S.W.2d 538; Senf v. St. Louis & Suburban Ry. Co., 112 Mo.App. 74, 86 S.W. 887.

Viewing the evidence in the light of the law respecting the measure of defendant's duty, we have no doubt that plaintiff made a case upon her theory of defendant's liability. What this means, however, is merely that she made a case for the jury, and not that defendant's liability appeared as a matter of law. Indeed, her present contention is wholly inconsistent with her position at the trial, where she asked and received an instruction submitting the question, as one of fact, of whether defendant had been guilty of negligence in stopping the bus at the point where it did, and in failing to warn her of the condition of the sidewalk. While she now says in her brief that she should have had a directed verdict in her favor, she made no such request at the time of the submission of the case, but instead correctly assumed that the question of her right to recover was one for the jury to determine.

As a matter of fact, with plaintiff's case depending on oral evidence and put in issue by the answer, defendant's liability could not have appeared as a matter of law unless its own evidence had conclusively established the negligence charged against it. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. However negligence does not become a question of law unless the acts constituting it are of such a character that all reasonable persons would concur in so pronouncing them. Ordinarily the question of negligence is to be left to the jury; and it is always so where the evidence on material points is conflicting, or where, even though the facts may be undisputed, different minds may reasonably draw different conclusions from them. Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045.

It will be recalled that in the present case the witnesses were not in accord regarding the depth of the broken area into which plaintiff claims to have stepped. A police officer described it as only a slight depression; and there was evidence that it was no more than one inch in depth at its deepest point. Whatever its dimensions, it in any event did not attract plaintiff's attention, although she testified that she glanced towards the sidewalk as she stepped down from the bus. Even though the jury may have believed that the uneven surface of the sidewalk was responsible for plaintiff's foot being twisted in such a manner as to cause her to fall, they may at the same time have felt that the risk was of a trifling character such as great multitudes of people encounter every day without likelihood of injury, and that the circumstances of the case were not such as to warrant an inference of negligence on the part of defendant in stopping its bus where it did. Lynch v. St. Louis Transit Co., 102 Mo. App. 630, 77 S.W. 100. The question of whether negligence ought to be inferred was one for the jury on the whole evidence, and plaintiff is wrong in her insistence that defendant's liability appeared in the case as a matter of law.

For her next point plaintiff complains of the giving of defendant's instruction No. 6, which read as follows: "The Court instructs the jury that if you find and believe from the evidence that plaintiff alighted from the motorbus of defendant at the time and place mentioned in the evidence and that she stepped into a hole or crack or uneven place in the sidewalk, if you so find, and if you find and believe from the evidence that plaintiff saw or, by the exercise of ordinary care, could have seen said hole or crack or uneven place in said sidewalk, if you so find, in time to have avoided stepping thereon, if you so find, and if you further find and believe from the evidence that the act of plaintiff in so doing was negligence on her part, if you so find, and if you further find and believe from the evidence that her negligence, if you find that she was negligent, was the sole cause of her fall and whatever injuries, if any, plaintiff sustained on the occasion in question, and that such injuries, if any, were not due to any negligence on the part of the operator of the motorbus in any of the particulars set out in other instructions herein, then, in that event, plaintiff is not entitled to recover and your verdict must be in favor of the defendant."

We cannot escape the conclusion that the giving of this...