Opinion
No. 27852.
May 16, 1950. Rehearing Denied June 13, 1950.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Mattingly, Boas Richards, and Lloyd E. Boas, all of St. Louis, for appellant.
Jones, Connell Jones, Douglas H. Jones, N. Murry Edwards, Ninian M. Edwards, all of St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff, Zada Beahan, while in the act of alighting from a motorbus owned and operated by defendant St. Louis Public Service Company.
The accident occurred at the regularly established bus stop on the sidewalk at the southeast corner of Fourteenth Street and Washington Boulevard, in the City of St. Louis.
The negligence pleaded and relied upon against defendant St. Louis Public Service Company was the act of such defendant in stopping its bus for plaintiff to alight at a point where the sidewalk was allegedly rough, uneven, unsafe, and dangerous, and in failing to warn plaintiff of such condition of the sidewalk.
Joined with St. Louis Public Service Company as a codefendant was the City of St. Louis upon which plaintiff sought to impose liability because of its failure to have repaired the sidewalk before her injury was received.
The jury returned a verdict in favor of both defendants, and in due time plaintiff filed her motion for a new trial, which the court sustained as to defendant St. Louis Public Service Company but overruled as to defendant City of St. Louis.
From the order so entered defendant St. Louis Public Service Company gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court, where appellate jurisdiction lies since the amount in dispute, exclusive of costs, is, but does not exceed, the sum of $7,500, the amount claimed in the petition. Constitution of 1945, Art. V, Secs. 3, 13, Mo.R.S.A.
This is the second appeal in the case, the opinion on the first appeal being reported as Beahan v. St. Louis Public Service Co., Mo.App., 213 S.W.2d 253. The first appeal was by plaintiff from a judgment in favor of defendant, St. Louis Public Service Company, which judgment was reversed and the cause remanded by reason of error committed against plaintiff in the giving of a sole cause instruction at defendant's instance when the evidence had failed to show a sole cause situation.
According to plaintiff's theory of the case, the place where the bus was stopped for her to alight was rendered unsafe and dangerous by reason of a broken or worn area along a seam in the sidewalk extending back from the curb for some 8 or 10 inches. While there was no dispute about the existence of an irregularity in the surface of the sidewalk at the particular point, the witnesses were not wholly agreed in regard to its dimensions. Plaintiff herself estimated the depression as being from 1 1/2 to 2 inches in depth; and the unevenness of the surface is revealed very clearly in certain of the photographs which were introduced in evidence as exhibits. Nevertheless none of the witnesses, including the bus driver, had ever noticed the condition of the sidewalk before, although the bus driver testified that when his attention was called to it in connection with plaintiff's injury, he afterwards had no trouble in seeing it from his seat in the bus.
On the occasion in question the bus was brought to a stop with its exit door immediately above the worn and broken area in the sidewalk, and as plaintiff stepped down her ankle was twisted in such a manner as to cause her to fall and sustain the injuries for which she seeks to be compensated in this proceeding. Although she had glanced down towards the sidewalk as she was in the act of stepping down off the bus, she had not observed the break in the sidewalk, but first discovered such condition after she had been assisted to her feet and then looked more intently to ascertain what had caused her to fall. Pressed on cross-examination as to whether it would have been possible for her to have glanced down towards the broken surface of the sidewalk, as she said she did, and not have taken note of its condition, she replied that such a thing could indeed be possible to one wearing bifocal glasses, which "play tricks on you at times".
The court sustained plaintiff's motion for a new trial as against defendant St. Louis Public Service Company upon the ground of error in the giving of instruction No. 5 at the instance and request of such defendant. The particular instruction read as follows: "The Court instructs the jury that if you find and believe from the evidence that on the occasion in question the operator of defendant, St. Louis Public Service Company's motor bus did not, and by the exercise of the highest degree of care, could not have seen the defect on the sidewalk, or having seen said defect, would not, in the exercise of the highest degree of care, have considered said defect to be dangerous, and further find that in stopping said bus at said point to discharge plaintiff and other passengers defendant, St. Louis Public Service Company, was exercising the highest degree of care and that he was not negligent, then you are instructed that plaintiff cannot recover against defendant, St. Louis Public Service Company, and your verdict must be for that defendant."
Plaintiff contends that the instruction was prejudicially erroneous in two respects, the first; in limiting the question of actionable negligence to that of the bus driver alone without regard to the negligence of any other of defendant's employees who may have selected or should have known of the allegedly dangerous stopping place; and the second, in usurping the province of the jury by relieving defendant from liability if the driver himself, though aware of the condition of the sidewalk, would not have considered that it was dangerous.
Defendant insists, on the other hand, that the instruction was a proper converse of plaintiff's own principal instruction; that there was no issue in the case regarding negligence on the part of any of its employees except the driver of the bus; and that having conjunctively required a finding that defendant was exercising the highest degree of care in stopping the bus where it did, the instruction could not have been prejudicial in incorporating the element of whether the driver, even though knowing the condition of the sidewalk at the point where plaintiff was invited to alight, would not have regarded the defect as being dangerous.
We agree with defendant that the instruction was not to be held erroneous upon the ground that it limited the question of negligence to that of the driver alone, and precluded the consideration of whether the injury might have been attributable to negligence on the part of any of defendant's other employees. Such an objection may frequently be tenable in a case based upon the doctrine of res ipsa loquitur, where the plaintiff is merely required to establish the basis for an inference of some unidentified negligence on the part of the defendant, and is therefore not to be denied the right to have the jury consider the possibility of negligence on the part of any one for whose acts the defendant is responsible so long as such negligence is related to the unusual occurrence which brought about the plaintiff's injury. La Vigne v. St. Louis Public Service Co., Mo. Sup., 181 S.W.2d 541; Stofer v. Harvey, Mo.App., 204 S.W. 587. But here the whole controversy was confined to the specific question of whether the driver of the bus had been negligent in stopping his bus for plaintiff to alight upon the broken sidewalk, and in failing to warn her of such condition. There was no evidence, and in fact no pretense, that any other employee of defendant had had anything whatever to do with causing the bus to be stopped at the particular point; and if defendant was to be held liable under the theory upon which the case was pleaded and submitted, it was solely because of the negligence of the driver of the bus.
But even though the instruction was not objectionable upon the ground that it unduly restricted the question of negligence to that of the driver alone, we cannot escape the conclusion that it was erroneous in so far as it directed a verdict for defendant upon the alternative predicate that the driver, "having seen said defect, would not, in the exercise of the highest degree of care, have considered said defect to be dangerous".
It is of course fundamental that the standard by which the conduct of a person in a particular situation is to be judged in determining whether he was negligent is the care which a reasonable and prudent person would be expected to exercise under the same or similar circumstances. For the most part the suppositious person whose conduct furnishes the standard is merely a person of ordinary prudence, though depending on the nature of the case the law may demand the exercise of a higher degree of care, as it does in this case involving a passenger and carrier relation, where it was the driver's duty to exercise the care of a very careful and prudent person. But in any event, and whatever the degree of care required, the question of whether the defendant or his agent was guilty of actionable negligence is one of fact for the jury when the proper conclusion does not appear as a matter of law; and the individual whose conduct is the subject of the inquiry is not to be permitted to make the determination of what was due care under the circumstances according to his own judgment in the matter. In other words, the standard to be applied is an external standard which takes no account of the personal equation or belief of the individual concerned; and it is not for the individual but for the jury to say whether he exercised the degree of care which would have been required from the supposititious person under the state of facts with which the individual was confronted. The Germanic, 196 U.S. 589, 25 S.Ct. 317, 49 L.Ed. 610; Maguire v. Barrett, 223 N.Y. 49, 119 N.E. 79; Mertz v. Connecticut Co., 217 N.Y. 475, 112 N.E. 166; Picart v. Smith, 37 Philippines 809, 813; 45 C.J. 688; 38 Am.Jur., Negligence, sec. 33.
It was therefore improper for the instruction in this case to predicate a defense on the basis of the driver's own judgment as to whether the particular place on the sidewalk was dangerous to a person alighting from his bus. All issues of fact were to be resolved by the jury, and not by the parties and their witnesses. The issue was whether the place chosen for plaintiff to alight was in fact dangerous, and not whether the driver, in the exercise of the highest degree of care, would himself have considered it dangerous. It was for the jury and not the driver to apply the test of proper care. If the jury found that the place was in fact dangerous, it was immaterial that the driver may have entertained a different belief about it. The instruction should merely have submitted the ultimate facts upon which liability depended, and then have left it to the jury to draw the proper conclusions.
Defendant argues, however, that the instruction could not have been prejudicial for the reason that after hypothesizing the question of whether the driver, having seen the defect, would not have considered it dangerous, the instruction then went on to require the further finding conjunctively "that in stopping said bus at said point to discharge plaintiff and other passengers defendant, St. Louis Public Service Company, was exercising the highest degree of care and that he was not negligent". In other words, defendant insists that in order for the jury to have found in its favor under the instruction, it was necessary for them to find that the driver had been exercising the highest degree of care in stopping the bus at the particular point for plaintiff to alight, and that this finding was in and of itself sufficient to justify a defendant's verdict irrespective of whatever else the instruction may have contained.
The rule for which defendant contends is frequently applied in cases where several grounds of negligence are hypothesized in an instruction conjunctively, each ground being alone sufficient to support a verdict, but one or more of such grounds being unsupported by the evidence. In such a situation it is held that inasmuch as the jury undertake to find the existence of each and every ground of negligence submitted, they must necessarily find the existence of those grounds which are supported by the evidence and which are that reason support the verdict which the instruction directs. Consequently the cases say that the party requesting the instruction has merely assumed an unnecessary burden in submitting the grounds unsupported by the evidence, and that the action of the jury in purporting to find the existence of such unsupported grounds merely amounts to harmless error. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Lanasa v. Downey, Mo.App., 201 S.W.2d 179; Halley v. Federal Truck Co., Mo.App., 274 S.W. 507.
However the rule which defendant seeks to invoke does not fit the instant situation. In this case the instruction did not conjunctively submit two or more independent matters, any one of which would have supported a verdict. Of course defendant could not be held liable for plaintiff's injury if the jury, under a proper instruction, had made a distinct finding that the driver had been free from negligence in stopping the bus where he did. But the truth is that the clause requiring such finding may not be isolated from the remainder of the instruction and be read apart from the whole context. By this instruction the jury were first required to find either of two alternatives — that the driver could not have seen the defect, or, having seen it, would not have considered it dangerous. Up to that point the jury were merely required to find the existence of one fact or another respecting the driver's conduct in relation to the defect. Then followed the requirement, not for a further independent finding, but for the jury to draw their conclusion from the facts already found as to whether the driver had been guilty of negligence in either of the matters submitted against him. As the instruction was drawn the jury were authorized to find that the driver had not been negligent if he himself had not considered the defect to be dangerous, whereas the question of whether the sidewalk was or was not dangerous should have been left to the jury's own determination from all the evidence in the case. The inclusion of the element of the driver's own judgment was therefore prejudicial to plaintiff's rights, and warranted the court in sustaining the motion for a new trial as against defendant St. Louis Public Service Company.
The Commissioner accordingly recommends that the order granting a new trial be affirmed and the cause remanded.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court.
The order of the circuit court sustaining plaintiff's motion for a new trial as against defendant St. Louis Public Service Company is, accordingly, affirmed and the cause remanded.
ANDERSON, P. J. and HUGHES, and McCULLEN, JJ., concur.