Lieser v. Bi-State Development Agency of Missouri-Illinois Metropolitan Dist., BI-STATE

• Decision Date: 13 May 1974
• Docket Number: BI-STATE,No. 58446,MISSOURI-ILLINOIS,58446
• Citation: 509 S.W.2d 53
• Parties: Zoe Ella LIESER, a/k/a Margie Lieser, Plaintiff-Respondent, v.DEVELOPMENT AGENCY OF theMETROPOLITAN DISTRICT, a body corporate and politic, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 53

509 S.W.2d 53

Zoe Ella LIESER, a/k/a Margie Lieser, Plaintiff-Respondent, v. BI-STATE DEVELOPMENT AGENCY OF the MISSOURI-ILLINOIS METROPOLITAN DISTRICT, a body corporate and politic, Defendant-Appellant.

No. 58446.

Supreme Court of Missouri, En Banc.

May 13, 1974.

Luke, Cunliff, Wilson, Herr, Chavaux & McCluggage, Paul H. Chavaux, Terry A. Bond, St. Louis, for plaintiff-respondent, Zoe Ella Lieser, a/k/a Margie Lieser.

Boas, Schneider & Walsh, Paul B. Hunker, Jr., St. Louis, for defnedant-appellant, Bi-State Development Agency.

Robert C. McNicholas, City Counselor, James J. Gallagher, Associate City Counselor, for defendant-appellant, the City of St. Louis.

FINCH, Judge.

Plaintiff obtained a verdict for $2,000.00 for personal injuries against Bi-State Development Agency of the Missouri-Illinois Metropolitan District (Bi-State) and the City of St. Louis (City). Both defendants appealed but subsequently the City dismissed its appeal. Thereafter, the Missouri Court of Appeals, St. Louis District affirmed the judgment as against Bi-State. We then sustained its application to transfer and we now decide the case as though it came here on direct appeal. Mo.Const., Art. V, § 10, V.A.M.S.

The single issue presented is whether plaintiff made a submissible case against Bi-State for injuries suffered when, although she descended from the bus without injury onto a regularly designated bus stop located immediately adjecent to the street curbing, she stumbled and fell over a somewhat raised concrete slab after she had walked 15 to 18 feet from the point of debarkation along an asphalt walkway located on city property.

Plaintiff had been employed for six years as a practical nurse by a woman who lived near the intersection of Pershing and DeBalivere in St. Louis. Most of the time she rode Bi-State's Union bus in going to and from her work. That bus discharged and picked up passengers at its regularly scheduled bus stop on city property located adjacent to the north curb of Pershing approximately 90 feet east of DeBalivere.

On the morning of June 14, 1968 plaintiff rode a Union bus to work and at approximately 7:20 a.m. she, along with other passengers, alighted therefrom at the Pershing bus stop. The weather was clear and the pavement dry. Some of the passengers left the bus by the front door and others, including plaintiff, disembarked through the rear door.

Plaintiff stepped from the bus onto a blacktopped strip adjacent to the north curb of Pershing. That strip, which had been there at least since 1962, extended west along the curb all the way to the sidewalk which ran along the east side of DeBalivere. No witness testified as to the width of this blacktopped strip but a photograph introduced into evidence would indicate that it was perhaps three feet wide. This balcktopped strip was separated from the sidewalk on the north side of Pershing Avenue by a dirt strip on which grass and weeds were growing. These had not been cut and passengers, including this plaintiff, generally walked along the blacktopped strip until they reached the DeBalivere sidewalk.

After disembarking plaintiff walked west along the blacktopped strip. After she had gone a distance of 15 to 18 feet she tripped over the edge of a concrete slab which surrounded a manhole cover located in the middle of the blacktopped walkway. She struck her face against the bus stop post, located just west of the concrete slab and adjacent to the street curb, causing injuries for which she brought this action.

The concrete slab in question covered a sewer inlet from the street into a storm sewer and appears from the photograph to be approximately four feet square. It appears to be almost level whereas the blacktopped walkway slopes gradually with the terrain toward the edge of the curb. As a result, at the north edge of the concrete slab the blacktop appears to be almost flush with the concrete, but as the blacktop slopes toward the curb, there is a gradual difference in height between the slab and blacktop of up to two or three inches.

The walkway where plaintiff and the other passengers were discharged and where they were walking at the time plaintiff fell was located on city property. Plaintiff submitted her case against the city on the basis of its failure to use ordinary care to remedy the condition caused by the raised concrete manhole which allegedly made the walkway not reasonably safe when the city knew or should have known of the dangerous condition. She submitted her case against Bi-State on the theory that in stopping its bus at such a point in relation to the raised concrete slab it failed to select a reasonably safe place for plaintiff to alight from the bus.

It is well established that a carrier is required to exercise the highest degree of care to avoid injury to passengers alighting from its vehicle and that such duty continues at least until the passenger has left the vehicle and is on the ground in safety. The question which arises from time to time is whether (and to what extent) the passenger-carrier relationship and the duties incident thereto continue thereafter, thereby creating a jury issue as to whether the presence of some condition such as the higher manhole cover results in the point of debarkation not being a safe place to alight.

Bi-State's application to transfer to this court was predicated on the assertion that the opinion of the court of appeals in extending the zone of Bi-State's obligation to its passenger beyond the point of safe debarkation relied on the decision of this court in Gott v. Kansas City Rys. Co., 222 S.W. 827 (Mo.1920) and its own decision in Feldotto v. St. Louis Public Service Company, 285 S.W.2d 30 (Mo.App.1955) but overlooked this court's decision in Lacks v. Wells, 329 Mo. 327, 44 S.W.2d 154 (1931) even though it was subsequent to the decision in Gott. Bi-State's position was that the court of appeals decision in this case was inconsistent with a rule announced in Lacks to the effect that a carrier's liability for injury to passengers does not extend beyond the immediate area of debarkation on public property.

While not specifically delineating the point at which she would recognize that the carrier-passenger relationship should terminate, plaintiff asserts that in the instant case it continued as she walked along the walkway adjacent to Pershing and that a jury issue existed as to whether in view of the raised manhole and the attendant danger Bi-State had selected a reasonably safe place for her to alight. This view was adopted in the opinion of the court of appeals.

The case of Gott v. Kansas City Rys. Co. and Feldotto v. St. Louis Public Service Company, both supra, deal with factual situations which differ materially from that presented in this case. In Gott, a streetcar discharged its passenger one block beyond the station at which she had told the motorman she wanted to alight. The motorman told her to walk back to the station where she had intended to alight. While doing so on defendant's right-of-way, she was struck by another streetcar. Saying that in this situation the carrier-passenger relationship did not terminate at the spot where plaintiff alighted without injury, the court held that since the streetcar operator was familiar with the surroundings and plaintiff was not, the injury received would be a reasonable expectation of the act of putting plaintiff off beyond her announced destination.

In Feldotto the plaintiff was descending from the bus on the exit steps and had placed her foot on the pavement when she was struck by an automobile passing the bus on the right. She had not completely alighted when she was hit. Hence, the carrier had not actually discharged plaintiff in a place of safety.

If in the instant case there had been a hole or substantial unevenness immediately beneath the steps by which plaintiff descended and she had stepped there and fallen, we would have a situation comparable to that in Feldotto in that plaintiff then would have been injured in the act of alighting. This would have been before the carrier-passenger relationship terminated and a jury issue would exist as to whether the carrier had selected a safe place for debarkation. This would be true even though the defective spot onto which plaintiff stepped was located on city-owned property. Actually, such a situation was presented in the case of Beahan v. St. Louis Public Service Co., 213 S.W.2d 253 (Mo.App.1948). In that case, the bus on which plaintiff was a passenger stopped at a regular bus stop at the southeast corner of 14th and Washington in the city of St. Louis. At that point there was a broken place in the sidewalk variously estimated at from 1 to 2 1/2 inches in depth and 8 to 10 inches square. The bus driver stopped at a point which resulted in this defective sidewalk being immediately below the steps by which passengers would be discharged. Plaintiff failed to discover the break in the surface and when she stepped into the hole in the sidewalk, she fell and was injured. The court of appeals recognized the general rule that the carrier has an obligation to select a reasonably safe place to discharge passengers and that the carrier-passenger relationship continues until the passenger has left the car or bus and descended to the sidewalk in safety. The court then said:

'Nor is it any the less the street railway or bus company's duty to exercise the highest degree of care to select such reasonably safe place that the street or sidewalk where it must discharge its passengers is outside its own control. If there is a defect in the street or sidewalk which is likely to cause injury to an alighting passenger, the company must stop its car or bus at a point beyond or short of the defect, or it must warn the passenger unless the danger confronting him is so glaring as to be as obvious to him as to the operator; and where it stops its car or bus at such a place that a passenger must alight...