evidence of movement of plus where the absolutely raise the issue that there was no evidence or a lack of evidence of one of us that opened the door for me to address that issue with matters that were in the record  a written opinion four days before the or the skids will be heard and we did not have an opportunity to argue parts of the plaintiff's case when we look at this case where we have to be mindful of where we are and what of law or fact my client was guilty of of more than fifty percent comparative fall and because of this accident on that basis that the fact of how the accident happened the fact the common carrier is the only instrumentality that causes the accident a rebuttal presumption arises and the carrier must explain why the accident resulted from a cause for wh should not be held responsible there is nothing in this record nothing under somebody's judgment motion nothing in the evidence where the bus company explains why it is not responsible for causing this seven which is on page five of my reply brief says once that presumption is race the carrier must explain why the accident resulted from a cause which should not which for which it should not be held responsible for what that is basically the b provision it takes the burden of proof away from the plaintiff and it places the burden of proof on the defendant it does not impose strict liability the defendant may come in with some testimony or some evidence that researched and i'm not happy with the results of but i have to live with where courts in this state have historically taken commentary of cases and compared ordinary negligence as compared to fall when the standard of care for the bus company is much higher and i would like this court to think about this when you go back to the chambers as to whether or not the level of compar to keep the patient alive while we're trying to ask questions it was so difficult if you look at the first two sessions the first thing that mr purposes to say and this can you hear me that's that's how bad this was and  every entry had to struggle to answer and his answers were not more than three or four words which would multiple breaks it was very difficult and it was so bad that personal ruin for counseling and gloves from motion so sparse and so sparse because it was very difficult getting out of cell so we have really two questions here that the whole case hinges on the one question was asked first of sam and the question is what happened how did he fall he says well the bus took off and i fell and one thing we know and if you look at the affidavit i'll tell you that the bus took off fester than normal but one thing we know is that sam was sitting on the bus since there's no evidence that he had any problems walking any impairment of his physicality was wearing any shoes that were loose we have to assume as  most people use that term to describe a fest in rapid motion not the bus started moving we have the circumstantial evidence that the took off with such a force that someone who is walking forward is propelled backwards knows the bus is going to start moving when the light changes yes he does he also would have a reason to presume that a bus company that has the highest standard of care for protecting the passengers on the bus would at least take a look and see if it was safe to start before proceeding rapidly from the from from the stop the fence position here comes from a deposition which is take a page from c one eighteen where they ask sam so when it started moving can you tell me anything about how it will answer but this gives an inaudible answer i'm sorry similar incredulously again i don't know i guess it just moved and then we have to repeat that because everything is so hard to get through and me anything about that but because of sam's condition and i don't blame anybody for that it was enough to get anything out of them but now what the defense wants the quick to believe is that c m doesn't know how the bus  that it took off and he fell down when he was moving forward it propelled him backwards and wants to somehow stretch this one answer to one big question about it's almost like an esoteric question tell me how the plus move that i don't know it's not the best question but stop it question but it doesn't really negate the fact that the bus company did something wrong on top of that we have a complaint that alleges also to face at the bus driver should have done he should cited by the defendant that talked about buses swerving and things and people falling down and saying well that's just too bad but those are cases involving a third instrumentality a bus was cut here and my question for you as a panel is does the person who causes the movement of the bus in such a way that sam in to stop because the car's parked so it makes that movement which is perhaps an ordinary movement but if you were properly balance or you hear you were inattentive or looked over your shoulder or another passenger you could fall down you fell down as you were sixteen year old kid you could fall down if you tripped over your feet but the fact of the matter is if you are coming up to that same scenario and the  no good reason and doesn't over that is not one that is it to speed by a bus driver of a bus passengers then there's liability here and you know this is a jury question you've got to remember that this whole issue was taken away from the jury and it shouldn't have been away from him with questionable facts there's no facts supporting anything from the bus company everything this well sam sort of been holding up is the fact that you were holding on sufficient in this case for you to take this case with for the jury and i submit to you that it's not and so i urge the squirt to reverse the finding of the court below and get us back where we belong and get to be in front of a jury and get to hear this case and argue it properly thank you any questions not in deposition testimony not offered it anywhere else length of the century conceded that point then he goes on to talk about well i also essentially concede that he waived his argument to argue about the amended nothing else is in the record oh the questions and answers other than the question answered yes but in terms of attempting to inject medical conditions loud room anything like that certainly medical conditions are not in the record here so again counsel tried to inject something that's not in the record but interestingly importantly if there was such a problem with this deposition which occurred in january of two thousand and seventeen there was no subsequent last practically of a very last lines of the of the deposition transcript the court will look and see counsel's own words in the record and i quote and it says we've really kind of labored getting the testimony correct on january nineteenth two thousand and seventeen when we completed that deposition counsel stated for the record we've really kind of labored getting the testimony correct three for three months didn't do anything else and all of a sudden when when i filed my motion for summary judgment to tell you those facts in just a minute all of a sudden now the deposition testimony is not complete not accurate lots of problems he wants to have it both ways goners he did he didn't do anything he doesn't get doesn't get to try to now stand up and say oh well i wish i would have done all these things essential he's asking you to give him a do over to fill in the blanks for and that's not what this  that was the sole reason why the truck court found that there was a crime appreciate case we have an appeal that issue so i don't know why we're even talking about it here the issue of duties is it's not clear what we're talking about here is the comparative negligence the comparative negligence clearly shows and i'm going to go through the testimony because counsel wants to try to limit it but actually it's rather expansive the clear testimony overwhelmingly shows that the plaintiff was more than fifty percent responsible for conduct again all this comes to a plaintive the only fact is what i guess it just moved the firm to the box that's the only back in the record talking about the defendant other witnesses no other actor david nothing now counsel has said well all we're relying on is the fact that the plaintiff wasn't holding on to any any any safety rails manifolds when he decided  not true that is one fact we are relying on but let me let me build all the facts because again we have to compare it so again member we were over here with just i guess it just moved in terms of the events conduct over here we have the pla he observed this red light had been red for a few minutes as you put it this plaintive is someone who has written these buses for twenty years every day he knows a red lights going t he then decided to stand up to throw pepsi bottle in a trash can in traffic there's no need to throw a pepsi bottle away in the trash can at that moment time in traffic when standing he admits he didn't hold on anything he then decided to walk forward still not holding on to anything walked for about ten feet not holding on to anything he was always behind the bus driver and finally he has admitted he does not know how long after the bus moved as to wh he said but he says i asked him how long after the bus moved you policy i don't know so there was some back pedaling for some time in the back pedaling to the bus cause something that the test was not there so all of these facts i correct and i was i'm about to talk about that test of lots of tight question it was because i wanted to talk about that series of questions because counsel in his brief as attempted to allege my question is somehow in big us or it doesn't refer to anything what the reason i asked the ultimate question that i want to get to so broadly is because it was literally can you tell me anything but here's where i started off i asked quote and then at that moment after you walked about ten feet what happen what answer the bus took off and i thought ok so let's clarify a little later in the deposition question can you tell me about the movement of the bus the answer it was moving ok following up further because again i'm still trying to dig in to this question so at the time started moving can you tell me anything about how it moved answer quote i don't know i guess it just the took off comment if you want to take that in a vacuum council tries to make it oh oh this must mean the bus moved fast runners take off doesn't mean fast you can take off fast you can take off slow you take up left you can take up right you can take off backwards that in and of itself doesn't mean anything but when you take it in the context of the series of questions that i ask to try to drill down what can you tell me anything about moving alternately admits i don't know i guess it just moves so that is the only testimony of the conduct of the defendant that is weighed against the barrage of testimony on this side of the plaintiff's conduct of moving from a place of safety to throw away empty pepsi bottle when no reasonable person needs to get up to throw a pepsi bottle away in the middle of a trip especially at a red light and a gentleman who has been on this bus for more than twenty years knows his life may change and yet he's been on this b for twenty years he decides i'm not going to hold on to anything i mean what reasonable person is not going to say you know what's about to happen he's going to fall over any movement a bus of the bus and i like to point out that the  cited a supreme court of a case again i know it's not precedent to be followed by this court but i think it actually contained a pretty good discussion here where it says the commentary is well known that there will be bumps and jerks and the amtrak train you know we know these bumps and things happen and that does not necessarily mean any any negligence has his been played by the common carrier that's just a matter of going down the road of the rails or in the  tell you to put your seatbelt on when you're when you're still seated in an airplane so the took off comment by itself is it is a red herring you have to get down to what you ultimately testified to was i don't i don't know how the bus and so when you compare that i don't know how the bus moved with all the evidence so we know we do have the plaintiff conduct is very clear that his conduct overwhelmingly more than fifty percent of the proffered was correct tried to have one that was purportedly son of a plaintiff that included language of the bus moves at high speed speed was higher than normal was the moon was so rough and fast this court has found and again we cited in our brief the smith versus actually case in one hundred seventy five case that you cannot attempt to thwart dispositive issue by by creating a fact issue proceeding well this testimony about high speed speed is higher than normal so abrupt and bass is directly contradictory to what the plaintiffs said when asked the series of questions and he ultimately said i don't know i guess it just moved that's not clear that's one hundred eighty degrees difference on one moment in january saying i can't tell you about how moved and then supposedly five months later he's talking about speed and abrupt stops and being fa so you're right your example is very apropos i think because again if someone the bus was pulling into a stop and someone is standing next to the door not only on anything not paying attention and the bus just naturally moves in and they accidently lose their balance is that is that the bus driver's fault no no it's not that person is not paying attention holding on to anything maybe standing up when they don't need to use more than fifty percent off for their own their own testimony so overwhelmingly favors the defense in this case counsel has gone on at length about his client was robbed of a trial trial court took it away from that that's why we have summary judgment summary judgment statute statute and rules are in there for very good purpose and it's to weed out cases just like this and we don't need to spend the time of trial when the evidence is what it is and this evidence if put for the trial is take off and leave brought her in some buses take off slowly do buses take off from a stop quite differently in different situations worse of all pretty much the same or if there's no evidence  answer in this record in this case there's no evidence of that for us to talk about but i can tell you in general terms what they're trained on this is a slow gradual acceleration but your point this cour by own power knew it was there decided to still get up from the trees on top of this thing and then as you coming down the street slip them well i would say back you know that argument is perhaps closer than we have in this case here in terms of comparing the mountain vs the more so yes you are absolutely there is a reasonable jury could find based just looking at the one requests responds in this case the court decided to take the issue of the most straight with the case which as i understand it i suppose is what i did come here and explain my position not bother you cross motions that you don't want to see i tried that was the fifth district and i was held there so i decided to follow the rules but let's look at what mr parker had to say i think there's something that is very interesting here he says the testimony is not there and that's the problem with that with this deposition the testimony really is not there to support his claim we know what we guards to the deposition depositions are complete they are as complete as they are i mean there are there doug and i'm not contesting the it has evidence that this will be possible what would you do to trial well judge you may or may not recall but probably year ago the rules with regards to using discovery depositions as evidence depositions has been expanded to parties if my don't have and now that we have sam say the bus took off and he fell we have sinned going forwards and go and then being propelled backwards you pointed out we have a twenty year veteran of us riding he has a very clear idea of how that bus should have left that intersection and in ninety nine percent of the time when the bus driver was doing the slow and steady acceleration that mr parker is admitted is the rules for the bus company you don't have to hold on why did he fall down this time because the bus took off quickly how do we know that not only did he say it did and then later in deposition didn't answer the same way he did previously with that test why still there we have the circumstantial evidence that shows that he fell that the force of the bus was enough when this adult man is walking forward is now propelled back which falls that's circumstantial evidence shows that there was for us this was not a slow and gentle start as this man had expected twenty once again that he's a veteran bus rider and we can infer from that that he has a fair idea of what buses do and this was something that he wasn't expecting he knew the bus was going to start on a bus at a stoplight you know try to change so why did he follow because the bus took off now what evidence do we have to the contrary we have not we have zero evidence this is all the same issue and it isn't a mountain against  it's all taken together and it's something that a jury should decide a jury should decide these issues not a judge we have to decide whether or not a jury will get to hear our things that we didn't hear hear like is some negligence or there is a duty it's up to the jury to decide what standard of care and what kind of conduct they think is appropriate in their community and to my client was deprived of that i believe he's entitled to that and thank you very much for your time and look forward