Opinion
No. 28532.
May 19, 1953.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT.
Carroll J. Donohue, Morton M. Hartz and Salkey Jones, St. Louis, for appellant.
David E. Horn, St. Louis, for respondents.
This is an action for damages brought by Olivia Munter because of injuries she received while riding as a passenger upon a bus operated by the defendant. She suffered the injuries complained of when a fellow passenger, who was intoxicated, lost his balance and fell upon her. Oscar Munter, her husband, joined in the suit and sought damages for the loss of his wife's services and companionship. The trial resulted in a verdict and judgment for both parties plaintiff and the defendant prosecutes this appeal.
The record discloses that Olivia Munter was a passenger on a northbound Kingshighway bus, which was owned and operated by the defendant in the City of St. Louis. When the bus came to a stop at Easton Avenue, it was boarded by a man who seemed to have difficulty in getting up the steps. He was bent forward and appeared incoordinated and clumsy. As he got on the bus he was weaving and shifting his feet to maintain his balance and it took him more than the usual time to pay his fare. He had a parcel in one hand and he reached into his pocket with the other hand for his money and then, apparently finding no money in that pocket, shifted the parcel to the other arm and reached in another pocket before he produced the required change. One witness said that this took him from two to three minutes. The bus was not crowded and after he had paid his fare he proceeded toward the rear without stopping at any seat. He did not go straight down the aisle but was weaving from side to side and, as he came where Mrs. Munter was seated, he lost his balance. He reached for an overhead rod but did not succeed in grabbing it and he fell upon Mrs. Munter. She was seated in a single seat on the left side of the bus, reading and paying no attention to other passengers, when he suddenly fell in such a manner that his shoulder struck her in the head and his knee hit her ribs.
The bus stopped and the operator came back, assisted the man to his feet, and helped him to a seat. The man was intoxicated and while Mrs. Munter had not noticed him until he fell upon her she said that when his face was close to her she smelled liquor. A woman seated in front of Mrs. Munter said that her attention was attracted to the man when he got on the bus because he appeared to be crippled and was staggering back and forth. None of the witnesses smelled any liquor upon him until after he fell.
After stopping the bus the operator put in a call to the defendant company and a police car arrived shortly thereafter. The police officers testified that the intoxicated passenger was incoherent in his speech and it was necessary for the two of them who answered the call to assist him from the bus. At the time they arrived the odor of alcohol was quite evident upon him. Mrs. Munter, who suffered from the blow on the head and some discomfort around her ribs, was taken to a hospital.
The operator stated that he thought the passenger was crippled when he entered the bus at Easton Avenue, for his body was bent forward, and that there was nothing unusual about him as he paid his fare except for the bent position of his body. He did not make any change for the passenger, nor watch him after he had paid his fare. After that the operator's attention was engaged in turning the bus from the stop at the curb out into the traffic, and the first he knew of the accident was when he heard a noise in the bus and saw the passenger learning against Mrs. Munter about ten feet from the front of the bus. He immediately pulled to the curb and stopped.
There was medical testimony but it is in no way related to the issues raised on appeal.
The appellant contends that the trial court erred in overruling its motion for a directed verdict, for the reason that the evidence failed to establish a claim against the defendant upon which relief could be granted, in that there was no evidence that the conduct, appearance, or actions of the offending passenger were such that the operator should have anticipated an occurrence such as that which brought about Mrs. Munter's injury.
The plaintiffs founded their case upon the premise that a carrier of passengers for hire has a duty to safeguard them from injury by an intoxicated fellow passenger. Such a duty does exist and in the exercise of it the carrier is obliged to use the highest practical care to protect passengers from an offending third party. Abernathy v. Missouri Pacific R. Co., Mo.App., 217 S.W. 568; Liljegren v. United Railways Co., Mo.App., 227 S.W. 925; Koenig v. St. Louis Public Service Co., Mo.App., 45 S.W.2d 896; Lige v. Chicago, B. Q. R. Co., 275 Mo. 249, 204 S.W. 508, L.R.A. 1918F, 548; Thompson v. St. Louis Public Service Co., Mo.App., 242 S.W.2d 299. This does not mean, however, that the carrier is the insurer of a passenger's safety and its liability for injury to its passenger arises only when it could have prevented such injury by the exercise of the highest practical care. A failure to exercise that degree of care is negligence and that is the only basis for the liability of the carrier. Abernathy v. Missouri Pacific R. Co., supra; Lige v. Chicago, B. Q. R. Co., supra; Sira v. Wabash R. Co., 115 Mo. 127, 21 S.W. 905. It is obvious that no one can be charged with a failure to perform a duty until the duty arises. That duty arises when the carrier becomes aware or in the exercise of care should become aware that a passenger's conduct is such that it may cause danger to his fellow passengers.
The case of Lige v. Chicago, B. Q. R. Co., supra, arose by reason of an intoxicated passenger suddenly, and without warning, assaulting the plaintiff. It was obvious to the conductor prior to the assault that the offending passenger was intoxicated, but he had done nothing to manifest any tendencies toward violence until the assault was committed. In discussing the same question that we have before us here, that is, whether or not the court should have directed a verdict for the defendant, the court stated [275 Mo. 249, 204 S.W. 512]:
"`If the conduct of a railway passenger is such as to excite reasonable apprehensions that his presence will result in injury or annoyance to other passengers, it is the right and duty of the conductor to expel him, without waiting for any overt act of violence. * * *'
* * * * * *
"There is no doubt about the correctness of that general rule, but that rule does not absolutely bar an intoxicated man of his right to ride upon the railroads of the country, nor authorize a carrier of passengers to exclude him from its trains, without his conduct is such as to cause the agents and servants of the company in charge thereof to apprehend danger from him to his fellow passengers. We are therefore clearly of the opinion that the court erred in refusing defendant's demurrer to the plaintiff's evidence."
All of the other cases above cited, wherein recoveries were allowed, presented situations wherein the defendant carrier, through its employee, knew that the offending passenger was engaged in conduct that would have made a very careful person apprehensive for the safety of the other passengers. These acts include boisterous language, pushing passengers, walking up and down the aisle of a public vehicle, bumping into other people, and the usual rowdy performances engaged in by some when their sense of propriety is dimmed and their baser instincts stimulated by drink.
It is quite apparent from the evidence, which is fully set out, that there was nothing belligerent, boisterous, or in any sense violent in the conduct of the person who boarded the bus at Easton Avenue. Therefore there was nothing to warn or to cause apprehension of any future act which might endanger the passengers. It is conceded by the plaintiffs that there is no evidence of any wilfully disturbing acts by the offending passenger, but it is urged that the operator's observation of him as he boarded the bus and paid his fare should have caused an apprehension that he might fall upon a fellow passenger.
We are cited to a number of cases from other jurisdictions upon which plaintiffs seek to support their contention. Montgomery Traction Co. v. Whatley, 152 Ala. 101, 44 So. 538; Virginia Railway Power Co. v. Hubbard, 120 Va. 664, 91 S.E. 618; Southeastern Greyhound Lines v. Smith, 23 Tenn.App. 627, 136 S.W.2d 727; Kinsey v. Hudson Manhattan R. Co., 130 N.J.L. 285, 32 A.2d 497; Holton v. Boston Elevated R. Co., 303 Mass. 242, 21 N.E.2d 251. Only two of these cases have to do with injuries inflicted on the plaintiffs by intoxicated passengers falling upon them, and the injuries arose from these involuntary acts of the offenders. The first is the Alabama case of Montgomery Traction Co. v. Whatley. There the conductor knew that the passenger was intoxicated. He was boisterous and had fallen before he fell upon the plaintiff. The other case is Virginia Railway Power Co. v. Hubbard, where the intoxicated passenger stood with his back to the door after he boarded the defendant's car and loudly addressed all present, after which he walked unsteadily about the aisle trying to shake hands with the passengers, all the while swinging from side to side and apparently about to fall. It will be seen that there is very little similarity in these situations to the facts before us.
A study of the Missouri cases and those of all other jurisdictions to which we have been referred reveals the rule to be that before a plaintiff can recover there must be evidence that the offending passenger was in a drunken condition so gross and obvious as to cause it to be apparent that he might injure some passenger unless preventive steps were taken. His condition must be apparent before, and not after, the injury complained of. Here the passenger got on the bus, with difficulty, but managed to stand and pay his fare, although he took longer than is customary, and after this the operator saw nothing of him until he fell. Consequently there was nothing that the operator saw, in the exercise of the care required, by which he could apprehend that the passenger was in such a condition that he would not walk to a seat without falling, and therefore the court erred in overruling the defendant's motion for a directed verdict.
For the reasons stated, it is the recommendation of the Commissioner that the judgment be reversed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.