Collier v. Bi-State Development Agency

• Citation: 700 S.W.2d 479
• Decision Date: 01 October 1985
• Docket Number: BI-STATE,No. 48893,48893
• Parties: Orlando COLLIER, Plaintiff-Respondent, v.DEVELOPMENT AGENCY, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 479

700 S.W.2d 479

Orlando COLLIER, Plaintiff-Respondent, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant.

No. 48893.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 1, 1985.

Motion for Rehearing and/or Transfer

Denied Nov. 12, 1985.

Fox, Goldblatt & Singer, Inc., St. Louis, for plaintiff-respondent.

Mark G. Arnold, Kathryn M. Koch, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for defendant-appellant.

SIMON, Presiding Judge.

Bi-State Development Agency (Bi-State) appeals a judgment of the Circuit Court of the City of St. Louis entered pursuant to a jury verdict of $15,000.00 in favor of Orlando Collier (Collier) for personal injuries sustained in a bus collision. In answering, Bi-State pled Collier's contributory negligence as an affirmative defense.

On appeal, Bi-State contends the trial court erred in failing to submit its tendered comparative fault instruction, which is supported by substantial evidence. We disagree. The tendered instruction is not in MAI, but incorporates 1983 Committee Illustration, MAI 32.01(1) and MAI 17.04, and provides as follows:

You must assess a percentage of fault to plaintiff if you believe:

First, plaintiff knew that there was a reasonable likelihood of collision in time thereafter to have grasped the handrail on the bus prior to the collision, but plaintiff failed to do so, and

Second, plaintiff was thereby negligent, and

Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.

In determining the propriety of an instruction, we view the evidence in the light most favorable to the submission of the instruction. Hopkins v. Goose Creek Land Co., Inc., 673 S.W.2d 465, 467 (Mo.App.1984). Collier, fifteen years old, boarded a Bi-State bus at the intersection of Grand and Twentieth Street sometime in the afternoon before 3:00 p.m. Collier sat in a window seat in front of the back door on the side opposite the bus driver. About twenty to twenty-five people were on the bus. The bus, proceeding west on West Florissant, stopped at the traffic signal at the intersection of Pope and West Florissant in the right lane next to the curb lane. Collier was looking out the window at all times and as the bus approached the intersection, he saw another Bi-State bus parked in the right parking lane of West Florissant at a bus stop approximately 1500 feet west of the signal. Collier testified that after the signal changed the bus on which he was riding was moving into the parking lane and it appeared that the bus would pull behind the other Bi-State bus. He estimated that the bus was traveling at a speed of 10-15 miles per hour. Approximately five seconds or more before the moving bus collided with the parked bus, Collier realized that the bus on which he was riding was going to collide with the parked bus. Collier, realizing that the bus would collide with the parked bus, raised his right hand to brace himself, but failed to take hold of the handrail in front of him. His chest hit his wrist and his wrist hit the handrail, fracturing his wrist in two places.

It is undisputed that a common carrier has a duty to exercise the highest degree of care to safely transport its passengers and to protect them while in transit. Jackson v. Bi-State, 550 S.W.2d 228, 232[3, 4] (Mo.App.1977). The duty to act with the highest degree of care does not rise to the level of strict liability or to that of an insurer. Id. at 232[4, 5]. However, Bi-State's duty does not excuse Collier from exercising ordinary care for his own safety. Bond v. Kansas City Transit, Inc., 401 S.W.2d 440 (Mo.1966). Further, Bi-State has the burden to prove Collier's contributory negligence and, if supported by substantial evidence, is entitled to an appropriate instruction.

Applying these accepted principles, Bi-State argues that the evidence adduced during trial sufficiently established Collier's contributory negligence in that he failed to take hold of the handrail between the time he became aware of the danger of collision and the actual collision, and his failure to do so resulted in the injury to his wrist.

In its argument, Bi-State's reliance on Moutria v. E. St. Louis Ry. Co., 76 S.W.2d 427 (Mo.App.1934) is misplaced. In Moutria, the plaintiff, a passenger on defendant's streetcar, observed danger but the danger was unknown to the operator of the streetcar. Id. at 429. Here, there is no showing that Bi-State's driver was unaware of the danger. Collier had the...