Swiastyn v. St. Joseph Light & Power Co.

• Decision Date: 05 October 1970
• Docket Number: No. 25299,25299
• Citation: 459 S.W.2d 24
• Court: Missouri Court of Appeals
• Parties: Lydia SWIASTYN, Respondent, v. ST. JOSEPH LIGHT & POWER COMPANY, Appellant.

Page 24

459 S.W.2d 24

Lydia SWIASTYN, Respondent, v. ST. JOSEPH LIGHT & POWER COMPANY, Appellant.

No. 25299.

Kansas City Court of Appeals, Missouri.

Oct. 5, 1970.

Sprague, Wilcox & Houts, St. Joseph, for appellant.

Louis Kranitz, Theodore M. Kranitz, St. Joseph, for respondent.

MAUGHMER, Commissioner.

The plaintiff, Lydia Swiastyn, received a verdict and judgment of $7,000.00 in damages for injuries received when she fell while alighting from defendant's bus. Plaintiff's petition charged that defendant allowed 'ice and packed snow' to accumulate on the bus steps, and that in the exercise of the highest degree of care, it should have removed same or warned plaintiff on the 'slippery and dangerous condition', but failed to do so and as a direct result plaintiff suffered severe injuries. Plaintiff did not submit on failure to warn, but solely on failure to remove. Defendant denied it was negligent and pleaded contributory negligence as an affirmative defense. Defendant appeals, claiming first, that its motion for directed verdict should have been sustained because the evidence does not show negligence on its part, and second, it does show that plaintiff was contributorily negligent as a matter of law. Defendant also asserts the court erred in giving Instruction No. 3 and by admitting incompetent evidence.

The accident occurred about 8:00 P.M. on December 30, 1967. At that time plaintiff was 42 years of age. She was a recent immigrant and was unable to express herself fluently in English. She had regular employment with the Whitaker Cable Company during the week and on weekends did housework for hire. She resided at 1517 Penn Street in the southern part of St. Joseph, Missouri. On the day of the accident--a Saturday--Mrs. Swiastyn had done housework for Mr. and Mrs. Louis Kranitz. About 6:00 P.M., Mr. and Mrs Kranitz took her in their automobile to the East Hills shopping center where she was 'dropped off' at the Katz drug store. She there made three purchases but all three packages were placed in one sack. Shortly thereafter she boarded one of defendant's buses. At that time she described the weather as 'bad and windy. Windy. Snowing.' Referring to the steps on the bus at East Hills, she said: 'It was slush and wet.' She rode this bus downtown to 6th and Francis Streets where she got off and went into the nearby Katz store to wait for a Wyatt Park bus which would take her home. She stated that she had no difficulty in getting onto or off the bus during this frist trip.

After a short wait, the Wyatt Park bus which was operated by one man, arrived and plaintiff got aboard. She was wearing rubber-soled overshoes. Again describing the weather and the condition of the bus, she said: 'It was melting snow. Like I say, it is wet, but it is kind of mixed. Wet snow, like icy is how it was.' 'It was snowing all afternoon.' She had no difficulty getting aboard. In due time the bus approached 15th and Penn Streets--her point of debarkation. She signalled for the bus to stop and it did so.

The bus was equipped with a heater in front but not in the stairway. There were overhead lights and a special light on the front steps. She said the stop was made about two feet out from the curb and opposite a street light. It was then nearing 8:00 P.M. Plaintiff said the bus stopped about two feet from the curb and the paving was not level but curved. This seems to be immaterial since she says she slipped on the bus step and not in the street. Mrs. Swiastyn said the bus came to a complete stop before she got up from her seat. She had her purse hanging over her left arm, the package (her purchases) was 'nestled in my left arm' and she was holding a package of hair spray in her left hand. She stated that the platform was wet but had no snow or ice on it. When she reached the steps (two in number) she looked down and could see both steps clearly. She held on to the 'bar' handrail with her right hand. In describing her descent she said that she didn't slip on the first step but got there with both feet. She also went down onto the second step, first with her right foot and then with her left, with no difficulty. Then she 'looked down again' and saw an accumulation of 'maybe two inches' of snow outside. She described the occurrences thereafter this way: 'I try to reach out with my left foot ground--However, before I did I slipped with my foot from the second step.' She fell, breaking her left ankle.

No other witness testified for plaintiff as to liability. She called three other witnesses--namely Dr. Jacob Kulowski, orthopedic specialist, who was her attending physician, an office employee at Whitaker Cable where plaintiff worked, and her daughter who acted from time to time as an interpreter. Rick Crawford, 16 years old, and a passenger on the bus, was called as a witness by defendant. He did not see plaintiff fall but assisted her afterwards. He observed the steps and said they were wet but there was no snow or ice on the platform or steps. Mr. Robert Hall, bus driver, also stated that the steps were wet but there was no snow or ice on them. He said Mrs. Swiastyn fell after she was in the street. No testimony was produced by either side as to the temperature at any time during the day of the accident--whether it was below or above freezing--and how much. The plaintiff made no estimate as to the depth of the accumulation which she said was on the step, nor how long it had been there, unless we assume that the 'melting snow' which she saw when she got aboard remained constant until her descent.

In determining if defendant's motion for directed verdict should have been sustained we, of course, accept plaintiff's evidence and all reasonable inferences therefrom to be true. Hurley v. Missouri Pacific Transp. Co., Mo.App., 56 S.W.2d 620. Just what are the facts as testified to by plaintiff, who was her only witness as to liability? We believe that fairly considered it shows: Plaintiff, a paying passenger, in attempting to alight from defendant's bus, slipped on the bottom step, fell and was injured. The accident occurred about 8:00 P.M. It had been snowing all day, 'wet snow, melting snow'. The bus platform was wet but had no snow, slush or ice on it. The two bus steps were wet and plaintiff saw 'melting snow' on them. There was about two inches of snow outside. Plaintiff who was carrying a package cradled in her left arm, held onto the handrail with her right hand. She reached the platform and the bottom step with both feet without accident. She was reaching with her left foot for the street, when her right foot slipped on the bottom step. We think plaintiff described a day when the temperature was above freezing. It had to be since she said there was 'slush' and the snow was melting. Her description of the condition of the steps did not include any accumulation of ice on the steps--only snow and slush. It was snowing at the time and of course some snow would fall on the steps when the door was opened, while slush and snow would be 'tracked in' by passengers getting on and off the bus. Plaintiff looked before attempting to descend and saw all of these existing conditions which she described. Neither plaintiff nor any witness for her said how much 'slush' had accumulated on the steps or how long it had been there, except she saw some 'melting snow' when she got aboard and some 'melting snow when she alighted.'

A carrier is required to exercise the highest degree of care in securing the safety of its passengers while alighting and in providing a reasonably safe place for them to disembark, but is not an insurer of the passengers' safety. 13 C.J.S. Carriers § 723, pages 1352--1353; Lacks v. Wells, et all., 329 Mo. 327, 44 S.W.2d 154, 157; Stofer v. Kansas City Public Service Co., 226 Mo.App. 376, 41 S.W.2d 614; Bond v. Kansas City Transit, Inc., Mo. 401 S.W.2d 440. In Lacks v. Wells et al., supra, page 157 of 44 S.W.2d the court quoted with approval the following from Craig v. Wabash Railroad, 142 Mo.App. 314, 126 S.W. 771, 772:

'* * * 'the carrier is not the insurer of the safety of his passenger, who is held to exercise reasonable care for his own safety when in the act of alighting from the carrier's conveyance.''

A carrier of a dry day, in the exercise of the highest degree of care to provide a reasonably safe place for passengers to alight, would be expected to have a dry platform and dry steps. But on a rainy day, in the exercise of due care, a carrier would not provide, and a passenger would not except to find, dry steps. In other words, the weather affects the conditions provided and also what a passenger may expect to find. We find this reasoning enunciated by our Supreme Court in Bond v. Kansas City Transit, Inc., Mo., 401 S.W.2d 440, 443, 444, 445. We quote:

'* * * While a plaintiff is not under a duty to look closely for danger where there is no reason for him to anticipate danger, the converse is true and if there is reason to anticipate danger, the defendant is under a duty to exercise ordinary care to look and ascertain if danger is present. * * *'

'These facts and circumstances compel us to the conclusion that plaintiff was riding the bus when generally prevailing weather and ground conditions were such as to put her on notice as to the need to look and exercise ordinary care for her safety. * * *'

The Supreme Court of Rhode Island (Riley v. Rhode Island Co., 29 R.I. 143, 69 A. 338, 340), from which we will quote later, reached the same conclusion.

The defendant cites five cases in support of its contention that it was not negligent. One case simply rules that a carrier is not an insurer. Another concerns a business invitee in a beauty shop where the degree of care is different. A third concerns failure to warn, which is not applicable to our case since plaintiff admits she saw the conditions. The other two are in point but from foreign jurisdictions. In one of these cases--Labrie v. Donham, 243 Mass. 584, 138...