Meyer v. St. Louis Public Service Co.

Decision Date16 December 1952
Docket NumberNo. 28317,28317
PartiesMEYER v. ST. LOUIS PUBLIC SERVICE CO.
CourtMissouri Court of Appeals

Carroll J. Donohue, Salkey & Jones, St. Louis, W. H. S. O'Brien, St. Louis, of counsel, for appellant.

Mortimer A. Rosecan, Inman, Dyer, Gray & Dreher, Charles E. Gray, Chelsea O. Inman, St. Louis, for respondent.

RUDDY, Judge.

This is an action brought by Paul R. Meyer against St. Louis Public Service Company to recover damages for personal injuries sustained on January 31, 1949, by reason of a fall which occurred while plaintiff was descending a flight of steps near a bus stop at Charlack Avenue and St. Charles Rock Road in St. Louis County. The jury returned a verdict in favor of plaintiff and against defendant in the sum of $10,000. Following a remittitur of $2,500, ordered by the trial court as a condition to the overruling of defendant's motion for a new trial, judgment for $7,500 was rendered and defendant appeals to this court, listing seven assignments of error. In view of the conclusion we have reached, we are limiting our opinion to a review of defendant's first assignment, that the trial court erred in overruling its motion for a directed verdict for the reason that plaintiff failed to prove a claim upon which relief could be granted.

In his petition plaintiff charged that the defendant, a common carrier, possessed, operated and maintained a right-of-way along St. Charles Rock Road and had installed and maintained a regular bus stop and crossing from the right-of-way to adjacent streets; that as a part thereof defendant installed and maintained steps descending from St. Charles Rock Road to the right-of-way; that plaintiff alighted from defendant's bus and proceeded onto the steps and while thereon did trip, stumble, slip and fall as a result of defendant's negligence. The allegations of negligence were (1) that the steps, bus stop and crossing were not a reasonably safe place for the discharge of passengers, for plaintiff to alight, and for persons to cross the right-of-way; (2) that defendant failed to exercise ordinary care to keep its right-of-way and the steps in a reasonably safe condition for use by plaintiff and instead maintained the same in a condition not reasonably safe for him; (3) that defendant failed to warn plaintiff of their unsafe condition.

Defendant's answer consisted of a general denial.

St. Charles Rock Road is south of defendant's right-of-way and the Rock Road and right-of-way run east and west and parallel each other at the place in question. The north line of St. Charles Rock Road right-of-way is the south line of defendant's right-of-way. The right-of-way of the public road is sixty feet wide. The traveled portion of the public road consists of a concrete slab forty feet three inches wide. Defendant's right-of-way is fifty feet wide. The level of defendant's right-of-way is below that of the public road. The steps in question have been there fifteen or twenty years and consisted of three boards leading from one level to the other and are on the public road right-of-way. The evidence does not disclose who built these steps. At the top of the bank a row of concrete posts is set in the ground on the public road extending twenty-five feet or more to the east of the steps and about the same distance to the west thereof. This row of posts parrallels the public road and defendant's right-of-way. The posts are spaced several feet apart and are connected by heavy wooden rail boards in the form of a barricade. There were three openings between these posts, one between the two posts at the top of the steps and two immediately east of the steps. From the two last mentioned openings a path leads down the incline from the public road to the level of defendant's right-of-way. At the bottom of the bank a steel barricade is located on defendant's right-of-way south of the streetcar tracks. It is made out of pipe, approximately hand-rail height, and parallels the row of concrete posts. There is an opening therein at the bottom of the steps and at the end of the path leading from the openings in the board barricade.

For many years defendant operated streetcars over its right-of-way. This was known as the Woodson line. Charlack and St. Charles Rock Road was a regular stop on the Woodson line. On December 29, 1948, defendant discontinued the use of streetcars and substituted buses therefor on this road. A bus stop was maintained on St. Charles Rock Road, at its intersection with Charlack Avenue, alongside the concrete posts that form the barricade. The streetcar rails, however, were still in place on January 31, 1949.

Plaintiff on the evening of January 31, 1949, was a passenger on a Woodson Road bus operated in a westerly direction on St. Charles Rock Road. At about six or six-fifteen P.M. he alighted from said bus at a point where the bus usually stopped for the intersection of Charlack Avenue with St. Charles Rock Road and about five feet east of the steps. He walked to the steps, held onto a post with his left hand and walked down two or three steps. He then let loose of the post when he wanted to take the next step and thereafter his foot slid and he fell landing on his back. These steps were covered with mud and leaves, a condition that had existed at least two years, and possibly ten years, according to plaintiff's witnesses. The day before the accident a severe sleet storm had occurred and covered the area with ice. This condition continued to exist the evening of the accident and these steps and the surrounding area were covered with ice making pedestrian travel difficult. Plaintiff had lived in this neighborhood for nine years and was aware of the mud and leaves on the steps and had observed dirt, leaves, and mud on these steps for several years before the accident. The morning of the accident plaintiff ascended these steps and observed the mud and leaves on the steps, covered with ice. Plaintiff lived north of St. Charles Rock Road and it was his habit and custom to use these steps in order to reach the lower level of defendant's streetcar right-of-way and proceed north on Charlack Avenue. For many years, when the streetcar line was operating, people living south of St. Charles Rock Road used the steps in going to and from the streetcars. After the defendant discontinued the operation of the streetcars, the people living north of St. Charles Rock Road used the steps in going to and from the buses.

Several years before plaintiff's fall, an automobile accident occurred near these steps and the concrete posts. Shortly thereafter defendant fastened board planks to these concrete posts and thereby barred all discharged passengers from proceeding directly north from the point of discharge, except when they were discharged directly in front of the steps. All passengers, seeking to go north from the bus stop, except those discharged directly in front of the steps, had to walk to the steps or the openings leading to the pathway alongside of the steps. This situation likewise faced all prospective passengers coming from the north and approaching this bus stop.

A work car of the defendant, operated on its streetcar tracks, was observed occasionally at or near these steps. Men would get off this car and work on and around the steps. At various times a man was observed cutting the weeds and grass in this area. No one had ever been seen cleaning the steps.

In support of its position that the trial court should have sustained its motion for a directed verdict, defendant asserts that at the time plaintiff was injured he was a traveler upon the public highway who had assumed all risks and hazards incident to pedestrian travel; that its duty to plaintiff as a passenger on its bus was fully discharged when he alighted from the bus safely on the public highway; that it owed plaintiff no duty with regard to the steps, contending that they were not built or maintained by it and were not located on its property. In further support of its position defendant asserts that plaintiff was fully aware of the condition of the steps and nevertheless elected to use them.

Before ruling on the merits of the position taken by defendant we are confronted with a contention of plaintiff that we cannot consider defendant's contention that its motion for a directed verdict should have been sustained because defendant's motion for directed verdict fails to comply with Section 510.210 RSMo 1949, V.A.M.S., which requires that the grounds for such motion must be made known to the court. The only reason given in the motion when presented to the trial court is that under the law and the evidence, plaintiff is not entitled to recover against the defendant. In Rothweiler v. St. Louis Public Service Co., Mo.App., 224 S.W.2d 569 loc. cit. 572, this court said: '* * * even if the general language of the motion is to be regarded as in and of itself insufficient to satisfy the requirements of the new code, * * * it does not follow that this court is precluded from inquiring whether the motion was correctly ruled.' It is a sufficient compliance with the provisions of Section 510.210 RSMo 1949, V.A.M.S., if, in the course of the trial, the movant makes known to the court, the grounds on which he is relying to have his motion sustained. Rothweiler v. St. Louis Public Service Co., supra; Ashton v. Buchholz, 359 Mo. 296, 221 S.W.2d 496; Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365. An examination of the record in the instant case indicates, from the objections made by counsel for defendant in the course of the voir dire examination and in the trial itself and from the nature of the amendment sought to be made when defendant offered its second amended answer, that the trial court must have known the grounds urged here by defendant in support of its contention. We, therefore, overrule this...

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