Citations
- 123 So. 2d 732
Full opinion text
ALLEN, Chief Judge.
The appellant, as plaintiff in the lower court, filed an action against the appellee-defendant for damages for injuries received when she fell while boarding defendant’s bus allegedly due to the negligent failure of the bus driver to assist her in boarding the bus. A trial by jury resulted in a verdict for the defendant and, after the denial of a motion for new trial, final judgment was entered for the defendant from which plaintiff has appealed.
On March 16, 1958, the plaintiff, who is 5 feet 10 inches tall and weighs .175 pounds, ' and a lady seventy years of age, purchased a ticket at the Sarasota bus station for a one-way trip to St. Petersburg. When the bus arrived in the station she became first in line to board the bus. The plaintiff stated that she handed the bus driver her ticket; that he nodded for her to get on the bus; that she requested him to help her up the steps because she was carrying her handbag and two small suitcases; that she requested the driver the second time to assist her, but he did not do so; and that she fell while trying to board the bus by herself. The plaintiff also stated that the bus driver was only a “foot or two” away from her when she .requested his assistance; but that the bus driver stated he did not hear her requests for assistance because he was talking to some other people.
Three witnesses who were present when plaintiff fell, stated that she fell before she attempted to enter the bus. The step of the bus is IS inches from the ground which is apparently the normal distance or height of bus steps. The plaintiff stated on cross-examination that this step was a normal bus step; and that she had traveled on buses alone over a period of years.
In her original complaint, plaintiff alleged that because of her age, size, and objects that she was carrying, the defendant’s driver was negligent and careless in failing to respond to her two requests for assistance. The court sustained the defendant’s motion to dismiss this complaint and commented that the plaintiff must show that the defendant’s driver knew she needed assistance. The plaintiff then filed her amended complaint in which she alleged that the defendant’s driver knew or should have known that she needed assistance.
In denying the motion for a new trial, the able trial judge in his order said:
“This cause is before the Court on motion of the plaintiff for a new trial wherein the jury returned a verdict on behalf of the defendant. The motion contains the usual grounds as to the verdict being contrary to the law and to the evidence and complains mainly of error on the part of the Court in its instructions to the jury. This Court is of the opinion that the verdict of the jury is well supported by the evidence and is in accord therewith. The charges of the Court are in line with and supported by the case of Tampa Electric Co. v. Fleischaker [152 Fla. 701], 12 So.2d 901. The fifth ground of the motion complains of the failure on the part of the Court to give to the jury its proposed charge on the degree of care owed by a carrier to its passengers, which charge counsel were advised the Court would give. At the conclusion of all the evidence a conference was held and counsel were advised by the Court generally of the instructions to be given by the Court and were advised by the Court that such charges would be given orally by the Court to the Jury and not first reduced to writing, with which practice on the part