Greyhound Lines, Inc. v. Miller
| Decision Date | 23 October 1968 |
| Docket Number | No. 19163.,19163. |
| Citation | 402 F.2d 134 |
| Parties | GREYHOUND LINES, INC., a Corporation, Appellant, v. Delta MILLER, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Thomas M. Sullivan, of Downey, Sullivan, McCormick & FitzGerald, Kansas City, Mo., for appellant; Edward L. FitzGerald, Kansas City, Mo., was with Thomas M. Sullivan, Kansas City, Mo., on the brief.
Arthur C. Popham, of Popham, Thompson, Popham, Trusty & Conway, Kansas City, Mo., for appellee; Arthur C. Popham, Jr., Kansas City, Mo., was on the brief with Arthur C. Popham, Kansas City, Mo.
Before MEHAFFY, GIBSON and LAY, Circuit Judges.
This diversity case removed from the state court resulted in a judgment of $20,000 based on a jury verdict for plaintiff Delta Miller on a claim against defendant Greyhound Lines, Inc. for damages occasioned by a fall on allegedly unsafe premises. After post-trial motions were denied, defendant filed a timely appeal. The accident complained of occurred in the terminal facilities of the defendant, located in Kansas City, Missouri. The substantive law of Missouri applies.
On June 14, 1966, about 6:30 p. m., the plaintiff arrived in a bus at defendant's bus terminal in Kansas City, Missouri. The bus stopped in parking slot No. 1 located next to the east wall of the garage area of the terminal. The passenger islands1 used for the loading and unloading of passengers are located in slots along the south side of the garage area of the terminal. The slots are so constructed that the buses have room to park next to the island area and discharge passengers onto the passenger islands from the right front door of the bus, thus affording the passengers a shorter distance to step up or down when leaving or entering the bus. These islands are raised above the floor of the garage 7 inches, but are on the same level as the waiting room floor. They extend along the right front door of the bus, when the bus is parked in its proper position, to a point approaching the middle of the bus. The island in question is about 37 inches wide and has a metal railing on the side of the island opposite the bus which extends the length of the island but does not have any end posts or warning sign at the north end of the island area. The edges of the island on the north end were outlined in yellow paint of varying shades of discernability.
Before the passengers disembarked from the bus they were told to claim their luggage from the bus's storage compartment, which is located near the middle of the bus on the right or discharge side. As the plaintiff descended from the bus, the driver said, "Watch your step down." After descending from the bus the plaintiff proceeded in the company of other passengers toward the luggage compartment to claim her luggage. The plaintiff, who is 6 feet, 1 inch tall, was walking towards the luggage compartment immediately behind a shorter woman. As they reached the curb or step-off at the north end of the island the shorter woman stepped aside allowing the plaintiff to proceed past her into the step-off area. The plaintiff, not seeing the 7-inch step, fell upon stepping from the island to the floor of the depot and fractured her left hip.
There was no claim that there was any foreign substance such as oil, or any crack or defect in the passenger island, nor was it contended that the plaintiff was pushed or crowded off of the island. The plaintiff's petition alleged that the defendant "* * * negligently failed to provide and maintain reasonably safe premises and facilities * * *." The plaintiff's position is that the 7-inch step at the end of the passenger island was not adequately marked and that she was given no warning of the step.
Immediately after the plaintiff fell, the driver of the bus, Truman Spencer, went to her aid. At this time Spencer testified that the plaintiff stated to him: , and further, "It's not your fault, it's not your fault." Spencer also testified that he could smell liquor on the plaintiff's breath.
After plaintiff fell, she was taken from the locale of the fall to St. Mary's Hospital by ambulance. After x-rays had confirmed the fact that she had a broken left hip, her doctor first tried to treat her fracture by manipulation. Failing in this, major surgery was performed on her left hip three days after she entered the hospital. In the operation parts of her bone in the hip area were removed and prosthesis of a metal pin was had in the affected area, all of which resulted in a shortening of her left leg 1½ inch.
The defendant contends, (1) that plaintiff failed to make a submissible case, (2) that the court erred in refusing to declare a mistrial or in refusing to instruct the jury to disregard plaintiff's counsel's alleged reference to a settlement, (3) errors in the admission of evidence of prior falls, (4) that plaintiff has misled and deceived defendant on important factual issues and had intentionally withheld substantial evidence, and (5) the court erred in its pretrial order No. 1 in cutting off defendant's discovery rights.
Defendant insists that the passenger island with its 7-inch step-off was an open, patent, ordinary and obvious condition; that the plaintiff knew of the condition or with the exercise of ordinary care should have known of the condition; and that the accident was a result of the plaintiff's own inattention which precluded her from recovering against defendant.
The liability imposed on a possessor of land to business invitees, in Missouri, is that set out in Restatement (Second), Torts § 343, pp. 215-216 (1965) and approved in Ecker v. Big Bend Bank, 407 S.W.2d 45, 47 (Mo.App.1966) and Hurst v. Chase Hotel, Inc., 421 S.W.2d 532, 534 (Mo.App.1967):
Wattels v. Marre, 303 S.W.2d 9, 14 (Mo. 1957) further sets out the applicable Missouri law regarding a land possessor's liability to an invitee:
The above language in the Wattels case was cited with approval in Colletti v. Crown Cork & Seal Company, 362 F.2d 458, 461 (8 Cir. 1966).
A business invitee must at all times exercise ordinary care for his own safety. Colletti, supra. A condition that is open and obvious, and as well known to the invitee as to the possessor, is not a basis for a claim. Harper v. First Nat. Bank of Kansas City, Mo., 196 S.W.2d 265, 267 (Mo.1946).
The plaintiff testified that she did not know the step was there and had never disembarked from a bus parked next to one of the passenger islands. Although she had used the bus infrequently over a ten-year period, she had always before loaded and unloaded at the north end of the garage section of the depot where there were no passenger islands. She further said she was unable to see the step because of the crowd of passengers on the passenger island.
There was evidence adduced at the trial of precautions taken by the defendant to guard the step-off at the end of the passenger island which would tend to show the defendant's knowledge of a dangerous or unsafe condition.2
There is no set formula that can be used to determine negligence in these step-and-fall cases. As pointed out by the Missouri Supreme Court in Wilkins v. Allied Stores of Missouri, 308 S.W.2d 623, 630 (Mo.1958):
Under the circumstances present in this case of a narrow passenger walk (37 inches wide) inserted as an island between two large buses and utilized under crowded conditions with part of the lighting obscured by the buses themselves, we cannot say as a matter of law that the step-off was open and obvious and that plaintiff should have known of its existence. Whether plaintiff was guilty of contributory negligence and whether the plaintiff should have seen the step in the exercise of ordinary care and whether the defendant was maintaining and operating an unsafe condition are all questions for the jury. We believe the plaintiff made a submissible case and the trial court properly submitted these issues to the jury.
Plaintiff's counsel in questioning defendant's witness Yocum, a claims investigator for Claims Service Company, who had investigated this accident for the defendant, asked Yocum about the nature of his business. After Yocum indicated that his services included checking on people and making reports to the Company, the following questions were propounded and answers given:
Defendant's counsel objected to the question and moved for a...
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