Feldman v. Howard
| Decision Date | 10 May 1967 |
| Docket Number | No. 40293,40293 |
| Citation | 226 N.E.2d 564,10 Ohio St.2d 189 |
| Parties | , 39 O.O.2d 228 FELDMAN, Appellee, v. HOWARD, O'Hara et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. A common carrier of passengers is required to exercise the highest degree of care to provide a reasonably safe place for its passengers to alight. (Paragraph one of the syllabus of Dietrich v. Community Traction Co., 1 Ohio St.2d 38, 203 N.E.2d 344, followed.)
2. Ordinarily, where a passenger has been safely discharged from a public taxicab onto a sidewalk where no danger exists, and thereafter such passenger in attempting to cross a street is struck and injured by a motor vehicle, there is no liability on the part of the taxicab driver or his employer for such injury.
3. The above rule obtains where a mentally retarded passenger attended by an ostensibly normal and responsible companion has been safely discharged with the companion from a taxicab and afterwards sustains injury from some independent source foreign to the incident of carriage.
This is an action grounded on negligence to recover damages for personal injuries and originated in the Court of Common Pleas of Franklin County. Sylvia Feldman, a mental incompetent, by her guardian is plaintiff, and Lloyd W. Howard, Jr., William N. O'Hara and the Northway Taxicab Company, an Ohio corporation, are the defendants. Negligence is charged against O'Hara, the taxicab driver, and the taxicab company, his employer, for discharging plaintiff, a passenger and known incompetent, from the taxicab at the place and in the manner they did with disregard for her further safety, and negligence is charged against Howard for striking plaintiff with his automobile as she attempted to cross East 15th Avenue in the city of Columbus immediately after she left the taxicab.
The third amended petition, answers of the three defendants and replies join the issues.
On the trial of the action and at the close of plaintiff's evidence in chief, the court, on motions, directed a verdict for all three defendants and rendered judgment accordingly.
As to O'Hara and the taxicab company, the basis for the directed verdict was stated to be the safe discharge of plaintiff from the taxicab and a lack of knowledge of her substandard mentality. As to Howard, the basis of the directed verdict was that plaintiff suddenly and unexpectedly entered the path of his automobile, and that he had no opportunity to avoid the collision-no negligence on his part.
An appeal to the Court of Appeals on questions of law resulted in a reversal of the judgment below as to all three defendants and a remand of the cause to the trial court for further proceedings according to law (5 Ohio App.2d 65, 214 N.E.2d 235.)
A timely motion to certify the record was filed in this court by O'Hara and the taxicab company, and such motion was allowed. Howard failed to file a motion to certify, and his later motion to be included in this court as an appellant on the merits along with O'Hara and the taxicab company was overruled. He stands separate and apart from the other two defendants and is charged with negligent acts of a different kind and character than are they.
Consequently, the cause is now here for decision on the merits as to O'Hara and the taxicab company only.
Volkema, Redmond & Wolske and Walter J. Wolske, Jr., Columbus, for appellee.
Clifford L. Rose and Walter J. Siemer, Columbus, for appellants.
The evidence in this case is in sharp conflict, since O'Hara was called as a witness for plaintiff and cross-examined, and some of his testimony was unfavorable to plaintiff in important respects. Stating the evidence most favorably for plaintiff, it shows that she was in her late fifties, a mentally retarded person and epileptic and was a ward of the state of Ohio. She, with others in a similar condition, had been placed in the home and under the care of a Mrs. McCaskill who resided on the north side of East 15th Avenue in the city of Columbus.
On the rainy night of Sunday, December 27, 1959, Mrs. McCaskill and several of the mentally retarded women in her care attended a church function. Pursuant to a summons, O'Hara, driving a cab belonging to the Northway Taxicab Company, picked up at the church as passengers Mrs. McCaskill and three of her mentally deficient companions and was requested to deliver them to the McCaskill residence. O'Hara had transported Mrs. McCaskill and these mentally deficient women before and allegedly knew or should have known of their disabilities. Instead of delivering his passengers at the McCaskill house, O'Hara stopped the cab on the south side of East 15th Avenue opposite such house and was paid the fare. Mrs. McCaskill and plaintiff safely left the cab from the right rear door onto the sidewalk. O'Hara remained in the cab and saw an automobile approaching along East 15th Avenue, which was later identified as the one Howard was driving. Plaintiff, against Mrs. McCaskill's remonstrances, stepped from the curb into the street and was struck and injured by the Howard automobile.
The then superintendent of the Columbus State School, a medical doctor, testified that, based on plaintiff's records, she had a mental age of approximately 10 years. Plaintiff did not testify.
On the facts narrated above, can or should liability be imposed on O'Hara, the taxicab company, or both?
It is well established that a common carrier of passengers is required to exercise the highest degree of care to provide a reasonably safe place for its passengers to alight. Dietrich v. Community Traction Co., 1 Ohio St.2d 38, 203 N.E.2d 344; Reuter v. Eastern Air Lines, Inc. (C.A.5), 226 F.2d 443; and Lockhart v. St. Louis Public Service Co. (Mo.), 318 S.W.2d 177, 180.
Going a step further, in Mahoning & Shenango Ry. & Light Co. v. Leedy, 104 Ohio St. 487, 500, 136 N.E. 198, 202, it was held in effect that where a common carrier has discharged a passenger in a place of safety, at which particular place there is no danger, it is not liable for injury the...
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