Jackson v. Bi-State Transit System

• Decision Date: 19 April 1977
• Docket Number: No. 37963,BI-STATE,37963
• Citation: 550 S.W.2d 228
• Parties: Beverly JACKSON, Plaintiff-Appellant, v.TRANSIT SYSTEM, Defendant-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 228

550 S.W.2d 228

Beverly JACKSON, Plaintiff-Appellant, v. BI-STATE TRANSIT SYSTEM, Defendant-Respondent.

No. 37963.

Missouri Court of Appeals, St. Louis District, Division One.

April 19, 1977.

Law Offices of Forriss D. Elliott, Mark S. Fredman, St. Louis, for plaintiff-appellant.

Gene J. Boesch, Boas, Schneider & Walsh, St. Louis, for defendant-respondent.

PER CURIAM.

Plaintiff-appellant, Beverly Jackson, sought damages for injuries sustained while a passenger on a bus of the defendant-respondent, Bi-State Transit System, when an object penetrated a window of one of the defendant's buses and struck her in the face. The trial court sustained a motion to dismiss her third petition and she appeals. For reasons hereinafter stated, we affirm.

In her second amended petition Ms. Jackson alleged that: (1) Bi-State operated a bus at or near St. Louis and University Avenues in the City of St. Louis; (2) she was a passenger on the bus; (3) Bi-State equipped its vehicles, including the one on which she was riding, with "a type of window glass which exposed the plaintiff and other passengers to the risk of bodily injury from missiles and objects being thrown at said buses"; (4) Bi-State had "prior knowledge of repeated incidences (sic) of missiles and objects being thrown at and through its vehicle windows"; (5) on April 9, 1975, while plaintiff was aboard the bus, "an object was caused to enter said bus by shattering a window in said bus . . . striking plaintiff about the face"; (6) although Bi-State had prior knowledge of "repeated" incidents of "objects" and "missiles" being thrown at and through windows, it was careless and negligent in that it "failed to install in said windows a safety glass known to resist the impact of such objects"; and (7) as a result of the negligence, a window was shattered allowing the object to enter the bus and strike her causing severe and permanent injuries to her eye, face, skull and neck.

Plaintiff had on two earlier occasions filed petitions claiming damages for her injuries. On each occasion Bi-State filed a motion to dismiss which was sustained, but the court on each occasion permitted plaintiff to file an amended petition. The second amended petition was dismissed with prejudice.

The precise issue on this appeal, as we perceive it, is a narrow one: when it is alleged that a common carrier has prior knowledge of repeated incidents of objects being "thrown" through the windows of its vehicles, ¹ is the carrier under a duty to install a type of safety glass so that an object does not penetrate the window and injure one of the passengers when the object and the force used to propel it are unknown?

In the resolution of this issue we are governed by general principles relating to dismissal of a petition for failure to state a claim. These principles have often been stated. See Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 630 (Mo.App.1975) and Dix v. Motor Market, Inc., 540 S.W.2d 927, 929 (Mo.App.1976). We are also governed by the general rule that a petition seeking damages for actionable negligence must allege ultimate facts which show (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976); Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 498 (Mo.App.1973).

The general principles relating to the law of common carriers, such as Bi-State, have often been repeated and are as old as passenger transportation itself. Generally, the law is strict and stringent as to the duties it imposes upon carriers. In the long history of the law of common carriers, these principles emerge:

1. As to equipment and facilities, a carrier is required to exercise the highest degree of care or the utmost vigilance in providing suitable machinery and appliances in the operation of its vehicles, in the employment of competent employees and ". . . generally as to all acts pertaining in any way to the conduct of its affairs in furtherance of its undertaking as a carrier." Woas v. St. Louis Transit Co., 198 Mo. 664, 96 S.W. 1017, 1019 (1906); Malone v. St. Louis-San Francisco Ry. Co., 202 Mo.App. 489, 213 S.W. 864, 867 (1919). In respect to these matters the rule in this state has always held such carriers to a strict accountability.

2. As to acts or conduct of fellow passengers, the carrier is bound to exercise the "utmost practicable care" or "utmost vigilance" ² to transport safely its passengers and to protect them while in transit from "insults and violance" at the hands of all on the vehicles including fellow passengers and any violation of this duty which results in injury to a passenger renders the carrier liable in damage. Lige v. Chicago B. & Q. R. Co., 275 Mo. 249, 204 S.W. 508, 511 (1918).

3. As to acts or conduct of third persons outside the control of the carrier who propel or throw missiles or objects at the common carrier, it has been said in Missouri that "(a) different rule seems to prevail . . . . In (this) case the carrier is only required to exercise ordinary care and vigilance . . . ." Williams v. East St. Louis & S. Ry. Co., supra, 232 S.W. at 760-761 citing Woas v. St. Louis Transit Co., supra. ³ As to these acts or conduct of miscreants who throw missiles or objects at or through windows of vehicles thus endangering the passengers, the principle is that the carrier is under no duty to protect the passenger and is not responsible for a resulting injury unless it has knowledge of the existence of danger or has knowledge of facts and circumstances from which danger may be reasonably anticipated. Woas v. St. Louis Transit Co., supra, 96 S.W. at 1023; Shepard v. Kansas City Public Service Co., 236 Mo.App. 1118, 162 S.W.2d 318, 321 (1942); Annot., 46 A.L.R.2d 1098, 1099 (1956).

With reference to acts or conduct of third persons who propel missiles or objects at the windows of carriers, we believe that the more modern principle and one consistent with modern society is that a common carrier of passengers must exercise the highest degree of care to provide for the safety of fare-paying passengers. The carrier is liable for injury to a passenger caused by a third person over whom it has no control if such injury could have been reasonably anticipated or naturally expected to occur. Homan v. County of Dade, 248 So.2d 235, 237 (Fla.App.1971) citing Florida East Coast Railway Company v. Booth, 148 So.2d 536 (Fla.App.1963). ⁴

The carrier's legal duty simply means that the carrier must exercise the highest degree of care for the passengers' safety which would under all the circumstances be deemed prudent to obviate a known or anticipated danger. ⁵

In short, we hold that a common carrier such as Bi-State is under the duty to exercise the highest degree of care or utmost vigilance to protect its passengers from all dangers which are known or which by the exercise of the highest degree of care ought to be known whether occasioned by its own employees, fellow passengers or by third parties over whom it may have no control when injury could have been reasonably anticipated by the carrier or its employees.

But all these stringent and strict principles of care and imposition of liability are tempered by the fact that a common carrier is not an insurer of the safety of its passengers. While the carrier is bound to exercise the utmost care to safely transport its passengers and to protect them while in transit, that duty does not amount to an absolute guaranty that a passenger will be transported to his destination with absolute safety. The carrier is not an insurer. Lige v. Chicago, B. & Q. R. Co., supra, 204 S.W. at 511; Malone v. St. Louis-San Francisco Ry. Co., supra, 213 S.W. at 867; Page v. Wabash R. Co., 206 S.W.2d 691, 694 (Mo.App.1947). There are certain risks and dangers for which the carrier is not, and should not be, exposed to liability. There are ". . . casualties against which human sagacity cannot provide, nor the utmost prudence prevent." Irwin v. Louisville & N. R. Co., supra, 50 So. at 63. The carrier is not charged with the duty of providing or maintaining its vehicles which will absolutely prevent injury to its passengers nor is it responsible for acts or conduct of third persons which are not reasonably anticipated. To require a carrier to provide or maintain vehicles which will absolutely prevent injury would be impossible. Vehicles of a common carrier would have...