Beahan v. St. Louis Public Service Co.
| Decision Date | 12 February 1951 |
| Docket Number | No. 42172,42172 |
| Citation | 237 S.W.2d 105,361 Mo. 807 |
| Parties | BEAHAN v. ST. LOUIS PUBLIC SERVICE CO. et al. |
| Court | Missouri Supreme Court |
Mattingly, Boas & Richards and Lloyd E. Boas, all of St. Louis, for appellant.
Douglas H. Jones, N. Murry Edwards and Ninian M. Edwards, all of St. Louis, Jones, Connell & Jones, St. Louis, for respondent.
This is an action for personal injuries sustained by respondent while in the act of alighting from a motor bus operated by appellant in which she had been a passenger. The city of St. Louis was also a defendant in this case. The jury returned a verdict for both the appellant and the defendant city. The trial court sustained respondent's motion for a new trial as to the appellant but overruled the motion as to the defendant, the city of St. Louis. The action of the trial court was affirmed by the St. Louis Court of Appeals in an opinion reported in 230 S.W.2d 173. On application of the appellant we ordered the cause transferred to this court.
On June 4, 1945, respondent was a passenger on a Delmar bus operated by appellant and as she alighted from this bus at the Fourteenth Street stop she stepped into a hole in the sidewalk which caused her to fall. As a result thereof she was injured. This hole was caused by reason of a broken or worn area along a seam in the sidewalk extending back from the curb some 8 or 10 inches. Respondent contends that appellant was negligent in stopping the bus at this place because this hole in the sidewalk made this place unsafe and dangerous for passengers to alight from the bus. There is no evidence that denies that the hole existed but both respondent and the operator of the bus testified they had never seen the hole prior to the day of this accident.
The trial court sustained respondent's motion for a new trial because he gave instruction No. 5 at the request of appellant. This instruction reads as follows:
'The Court instructs the jury that if you find and believe from the evidence that on the occasion in question the operator of defendant, St. Louis Public Service Company's motor bus did not, and by the exercise of the highest degree of care, could not have seen the defect on the sidewalk, or having seen said defect, would not, in the exercise of the highest degree of care, have considered said defect to be dangerous, and further find that in stopping said bus at said point to discharge plaintiff and other passengers defendant, St. Louis Public Service Company, was exercising the highest degree of care and that he was not negligent, then you are instructed that plaintiff cannot recover against defendant, St. Louis Public Service Company, and your verdict must be for that defendant.'
Respondent contends that the instruction is erroneous because it limits the negligence to the bus driver alone and not to other employees of appellant who may have known of the alleged dangerous stopping place, and that this instruction usurped the province of the jury by relieving respondent from liability if the driver, though he knew of the defect in the sidewalk, yet if he exercised the highest degree of care he would not have considered it dangerous.
However, appellant contends that the instruction is a proper converse of respondent's recovery instruction; that there was no issue regarding negligence on the part of any other of its employees except the bus operator; and that that part of the instruction which told the jury 'or having seen said defect, would not, in the exercise of the highest degree of care, have considered said defect to be dangerous,' even if erroneous when given in the conjunctive with the further finding that appellant was exercising the highest degree of care in stopping where it did, could have been prejudicial.
There is no evidence that any other employee of appellant had anything to do with causing the bus to be stopped at the particular point except this bus driver, and if appellant is to be held liable under the specific negligence pleaded and submitted, it was solely because of the negligence of this driver of the bus.
In the case of La Vigne v. St. Louis Public Service Co., Mo.Sup., 181 S.W.2d 541, we held a similar instruction to be erroneous. However, that case was submitted under the res ipsa loquitur doctrine while the case at bar was submitted under specific negligence. For that reason we think that case is distinguishable from the case at bar.
However, we are of the opinion that this instruction is erroneous insofar as it directed a verdict for appellant upon the alternative predicated that the driver '(or) having seen said defect, would not, * * * have considered said defect to be dangerous,' this for the reason that whether or not a person exercised a proper degree of care is not to be determined by reference to his own personal judgment in the situation. The law 'does not permit him to make the determination of what is, and what is not, due care under the circumstances, according to his own judgment.' 38 Am.Jur. 679, Sec. 33. It is fundamental that the standard by which the conduct of a person in a particular situation is to be judged in determining whether he was negligent is the care which a reasonable and prudent person would be expected to exercise under the same or similar circumstances. Mrazek v. Terminal R. R. Ass'n of St. Louis, 341 Mo. 1054, 111 S.W.2d 26.
The issue in this case is whether the place the driver of the bus chose for respondent to alight was in fact dangerous, and not whether the driver of the bus, in the exercise of the highest degree of care, would have believed it to be dangerous. The jury and not the driver must apply the test of proper care. If the jury found that the place was in fact dangerous, the fact that the bus driver entertained a different opinion is immaterial.
Appellant contends that even though this part of the instruction just discussed is erroneous, yet such error is not prejudicial because after hypothesizing the question that if the driver, having seen the defect, would not have considered it dangerous, was conjunctively jointed with the further finding 'that in stopping said bus at said point to discharge plaintiff and other passengers defendant, St. Louis Public Service Company, was exercising the highest degree of care and that he was not negligent, then you are instructed that plaintiff cannot recover against defendant, St. Louis Public Service Company, and your verdict must be for that defendant.'
If we understand appellant correctly, its contention is based upon the rule frequently applied in cases where several grounds of negligence are hypothesized in an instruction conjunctively, each ground being alone sufficient to support a...
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