Blase v. Bi-State Development Agency
| Decision Date | 11 December 1973 |
| Docket Number | BI-STATE,No. 34567,34567 |
| Parties | Clara BLASE, Plaintiff-Appellant, v.DEVELOPMENT AGENCY, a corporation, Defendant-Respondent. . Louis District |
| Court | Missouri Court of Appeals |
Theodore H. Hoffman, Hoffman & Carter, Inc., Attys., Kramer, Chused, Kramer, Shostak & Kohn, Burton H. Shostak, Lloyd A. Palans, St. Louis, for plaintiff-appellant.
John A. Walsh, Jr., Boas, Schneider & Walsh, St. Louis, for defendant-respondent.
Suit for personal injuries sustained by plaintiff-appellant while a passenger on one of defendant-respondent's buses. After a trial and jury verdict for $45,000.00 in favor of plaintiff and judgment entered on the verdict, defendant moved for a directed verdict or in the alternative for a new trial, alleging prejudicial error in the instructions. Motion for new trial was granted and plaintiff appeals. We find that the trial court properly granted the motion for a new trial.
Plaintiff boarded defendant's bus at the corner of 8th and Locust Streets in St. Louis at approximately 7:30 a.m. on April 9, 1969. As she moved toward the back of the bus to take a seat, she slipped and fell, breaking her leg. There was no dispute that the floor of the bus was wet. The controversy centers on whether there was evidence sufficient to support a jury instruction that an accumulation of water was present on the bus floor at the time the bus driver first picked up the bus in defendant's yard at Broadway and East Taylor in St. Louis on the morning of the accident and prior to his starting the bus run. It was plaintiff's theory that such an accumulation existed creating a dangerous condition for which defendant should have given warning or had removed; that it was the accumulation of water existing at the start of the bus run which caused plaintiff to slip and fall and injure herself.
The facts are that on the might of April 9, 1969, between midnight and 4:30 a.m., 6/7ths of an inch of rainfall was measured at the United States Weather Bureau, Lambert Field Station. The bus driver picked up his bus at the Broadway and East Taylor Yard shortly before 7:00 a.m. He noticed two or three windows open toward the front part of the bus and closed them. He walked to the back door of the bus to adjust the mirror but did not observe any wetness in the bus. The window next to the driver's seat was open at the time he picked up the bus but neither the steering wheel nor the driver's seat was wet. There was testimony that the time the plaintiff boarded the bus, about thirty minutes after the driver had started his run, the streets were wet and that there was some precipitation in the air while the driver was making his run; the driver had his windshield wipers operating at the time plaintiff boarded the bus. Passengers on the bus testified that they noticed that the bus floor was wet with one witness commenting that it seemed 'as though it had been wiped with a wet cloth.' Passengers who came to the aid of the plaintiff after she had fallen noted that her coat and hand were wet from moisture on the fllor. Plaintiff testified that there was no standing water or pools on the floor--only that the floor was moist. The only direct question asked of any witness regarding whether an accumulation of water existed produced a response that there was no accumulation of water.
The trial court gave the following plaintiff's verdict directing instruction based on a modification of MAI 22.04:
'Your verdict must be for plaintiff if you believe:
First, that at the time the bus left the yard there was an accumulation of moisture on the flooring next to the center aisle of the bus and as a result said flooring was not reasonably safe for the use of passengers, and
Second, defendant knew or by using the highest degree of care should have known of the existence of this condition, and
Third, defendant failed to use the highest degree of care to remove it or to warn of it, and
Fourth, as a direct result of such failure plaintiff was injured unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.
The term 'highest degree of care' as that term is used in this instruction means that degree of care that a very careful and prudent person would use under the same or similar circumstances.'
The court thereafter sustained defendant's motion for a new trial on the ground that the first paragraph of the instruction was an improper deviation from MAI Nos....
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