Rohner v. Bi-State Development Agency
| Decision Date | 17 March 1987 |
| Docket Number | No. 51186,BI-STATE,51186 |
| Citation | 728 S.W.2d 626 |
| Parties | Jane E. ROHNER and Alfred Rohner, Appellants, v.DEVELOPMENT AGENCY and Sisters of St. Mary, Respondents. |
| Court | Missouri Court of Appeals |
Lupo & Stemmler, James A. Stemmler, St. Louis, for appellants.
Coffelt & Coffelt, Edwin B. Frezezinski, Jr., Clayton, for Sisters of St. Mary.
W. Morris Taylor, Crystal Y. Smith, Clayton, for Bi-State Development Agency.
Appeal by Mr. and Mrs. Rohner (plaintiffs) from a directed verdict in favor of Bi-State Development Agency (Bi-State) at the close of plaintiffs' evidence and a jury verdict in favor of Sisters of St. Mary (Hospital). We affirm.
Plaintiff-wife, a bus passenger, sustained injuries when she fell while descending the rear door bus steps of a bus owned and operated by respondent Bi-State. She sustained further injuries at Hospital while trying to use a bedpan while seated in a wheelchair. On October 8, 1985, the trial court sustained Bi-State's motion for a directed verdict at the close of plaintiffs' evidence on the ground there was no notice to Bi-State of the existence of foreign objects on the bottom step of the bus which caused plaintiff-wife to fall. On October 9, a jury found against plaintiffs and for Hospital for the alleged injuries sustained by wife in the use of the bedpan.
As to the directed verdict, we view the evidence in the light most favorable to plaintiffs. Barnett v. M & G Co., 611 S.W.2d 370, 371 (Mo.App.1981). Bi-State owed plaintiffs the highest degree of care. Pierce v. St. Louis Public Serv. Co., 380 S.W.2d 943, 948 (Mo.1964). However, Bi-State is not liable to plaintiffs for injuries to passenger-wife when she fell while leaving the bus because of foreign objects on the bottom steps of the bus unless the bus driver knew or should have known about the presence of such foreign objects, that these objects were a danger to plaintiff-wife, and the knowledge of such danger came to the bus driver in time for him to remove the danger. Vortriede v. St. Louis Public Serv. Co., 58 S.W.2d 492, 493 (Mo.App.1933).
On July 15, 1978, plaintiff-wife, who was sixty-six years of age, started to leave the bus by the rear steps. She testified the rear steps were eight to nine feet from the bus driver. While standing at the top of the rear steps, plaintiff-wife looked down and saw a styrofoam cup, a plastic lid and a straw on the bottom step. While she believed she could exit with safety to herself, she turned to her husband and, in a loud voice (he was partially deaf), told him there was debris on the lower step of the bus and to be careful. She further testified that nine to ten seconds later she stepped on a foreign object on the bottom step, lost her balance and fell.
In their original brief, plaintiffs cite two cases to buttress their contention the case against Bi-State was submissible. Barnett, 611 S.W.2d at 371 was for the law pertaining to directed verdicts; and Pierce, 380 S.W.2d at 948 was for the degree of care owed by Bi-State to plaintiffs. Barnett involved a gas explosion. Pierce involved an alighting passenger whose action against the bus company was for injuries sustained in a fall by reason of a foreign substance on the bus steps. In that case, a passenger did not see the foreign substance on the steps until after he had fallen. In addition, there was evidence the bus driver could see the rear steps in his rear view mirror, had looked in the rear view mirror, and saw nothing on the steps. In other words, there was an oblivious passenger and a bus driver with the ability to see and who had looked and did not see. In our case, plaintiff-wife looked and saw the danger. There was no duty for the driver to warn of a danger of which plaintiff-wife was fully aware. In Swiastyn v. St. Joseph Light & Power Company, 459 S.W.2d 24, 31 (Mo.App.1970), the court found no submissibility where the passenger slipped and fell on the bottom steps of the bus where it had been snowing all day and the bus steps were wet and contained melting snow. The Swiastyn court found no duty to warn the passenger who was aware of the situation and knew of the melting snow.
In their reply brief, plaintiffs cite Haverkost v. Sears Roebuck & Co., 193 S.W.2d 357 (Mo.App.1946) and Collier v. Bi-State Development Agency, 700 S.W.2d 479 (Mo.App.1985). Haverkost involved a customer in a Sears store who tripped on an obstruction on steps without having been apprised of the obstruction prior to her fall. Collier involved contributory negligence of a passenger in a bus collision. Neither of these two cases save plaintiffs' failure to prove a submissible case.
In the case at bar, the bus driver may or may not have heard plai...
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