Adkins v. Raleigh Transit Co. INC.

• Decision Date: 24 October 1944
• Docket Number: (No. 9605)
• Citation: 127 W.Va. 131
• Court: West Virginia Supreme Court
• Parties: Carlos Adkins, An Infant, etc. v. Raleigh TransitCompany, Inc.

127 W.Va. 131

Carlos Adkins, An Infant, etc.

v. Raleigh TransitCompany, Inc.

(No. 9605)

Supreme Court of Appeals of West Virginia.

Submitted September 27, 1944.

Decided October 24, 1944.

1. Carriers-

A person with intention to become a passenger of a motor bus, used as a public carrier, upon its arrival at a regular bus stop on a public street does not, merely by awaiting the arrival of the bus thereat, become a passenger of the carrier; and in the absence of such relationship the carrier owes such person no higher duty than the exercise of reasonable care for such person's safety compatible with the practicable operation of the bus.

2. Trial-

In an action for personal injury, a negligent plaintiff, in a position of peril, who cannot extricate himself therefrom and thus avert injury, may, nevertheless, recover where defendant actually saw plaintiff in his position of peril and realized his helplessness therein, or actually saw plaintiff's situation and had reason to realize his helpless peril, or by the exercise of reasonable care could have seen plaintiff in his perilous position and could have realized his helplessness in time thereafter, by the exercise of reasonable care, to avert the injury.

3. Negligence-

A negligent plaintiff, in a position of peril, who can extricate himself from his perilous position but does not do so because of his obliviousness to impending danger, "may nevertheless recover for injuries, where the defendant knew of plaintiff's situation, and, under the circumstances, in the exercise of reasonable care, should have realized plaintiff's peril, and, on such realization could have avoided the injury." Pt. 4, Syl., Meyn v. Dulaney-Miller Auto Company, 118 W. Va. 545, 191 S. E. 558.

4. Trial-

In an action for personal injury it is not error for a trial court to refuse an instruction containing matters argumentative and not pertinent to the issues involved.

Kenna, Judge, absent.

Error from Circuit Court, Raleigh County.

Trespass on the case by Carlos Adkins, an infant, etc., against Raleigh Transit Company, Inc., to recover for injuries sustained when plaintiff's foot was either run over or crushed against curb by defendant's bus. To review a judgment for plaintiff, defendant brings error.

Judgment reversed; verdict set aside; new trial awarded.

McGinnis, Mann & Thornhill, W. A. Thornhill, Jr., and Fletcher W. Mann, for plaintiff in error. C. R. Harless, for defendant in error.

Riley, Judge:

In this action of trespass on the case, defendant, Raleigh Transit Company, prosecutes this writ of error to a judgment of the Circuit Court of Raleigh County in the amount of fifteen hundred dollars in favor of Carlos Adkins, an infant eighteen years of age, who sues by his next friend.

On March 27, 1943, plaintiff was injured at defendant's bus stop on North Fayette Street near its intersection with Main Street in the City of Beckley, by having his left foot either run over by the front wheel of defendant's bus or crushed between the wheel and the curb as the bus was. driven to the bus stop. Plaintiff presented his case on the theory that while he was awaiting the arrival of the bus, he was pushed from the sidewalk into the street by a large crowd of people and was unable to get around the crowd because of its size or through it in an effort to regain the sidewalk; that he was in full view of the bus driver who, by the exercise of a high degree of care, which plaintiff claims a public carrier owes to its passengers, could have avoided injuring plaintiff. In defense, defendant asserts that plaintiff was not its passenger and therefore it was under a duty to use reasonable care only; that it did not fail to use such care toward plaintiff because plaintiff was pushed into the side of the bus as it reached the curb, and defendant had no opportunity to avoid hitting him; that plaintiff was guilty of contributory negligence in that he was pushed off the sidewalk as the result of his participation in wrestling with several boys, and thereafter failed to use a reasonable effort to regain his position on the sidewalk; that defendant's injury resulted from the act of third parties, either boys engaged in wrestling or the crowd on the sidewalk; and, finally, that the trial court erred in refusing to give defendant's instructions Nos. 1, 2, 3, 4, and 12.

The threshold question in this case is: What was the degree of care which defendant owed plaintiff? Plaintiff claims that because he was injured at defendant's bus stop, regularly established under an ordinance of the City of Beckley, and was contemplating boarding the bus, he was defendant's passenger, and therefore defendant owed to him the highest degree of care in the operation of its bus. Where such relation exists the carrier owes to the passenger the duty to use the highest degree of care compatible with the practicable operation of the vehicle. VenabZe v. Gulf Taxi Line, 105 W. Va. 156, pt. 1 syl., 141 S. E. 622; Bennett v. Bartlett, 110 W. Va. 478, 158 S. E. 712. But was plaintiff defendant's passenger? The relation of carrier and passenger has been held to exist where a plaintiff was injured while on the carrier's property for the purpose of boarding a train, street car or bus, as at the carrier's railroad station, street car station or bus terminal. "Kidwell v. Chesapeake & Ohio Railway Company, 71 W. Va. 664, 77 S. E. 285; Atkinson v. Dixie Greyhound Lines, 125 F. 2d 237 (C. C. A. 5). But does such relation exist where, as in the case at bar, defendant's bus stop was at the sidewalk of a public street in the City of Beckley? While it may be true that plaintiff was standing there intending to board the bus, at the time he was injured he had not as yet been accepted by the bus driver as a passenger, or entered into the bus, or made any movement in actually attempting to board the bus or communicated his intention to the driver. He was simply a member of the general public, whose right on the public street bore no relation to his intention to board the bus. In these circumstances, we think, he was not defendant's passenger. In Klovedale v. Ohio Public Service Co., 54 Ohio App. 244, pt. 2 syl., 6 N. E. 2d 995, the Court held:

"The relationship of passenger and carrier in cases where busses are involved does not come into existence until the person intending to become a passenger does some physical act in respect to boarding the vehicle or that intention is com- municated to the carrier's agent in charge, when the physical chance of boarding may be accomplished with safety to both contracting parties."

See also Norfolk & Atlantic Terminal Co. v. Morris' Admx., 101 Va. 422, 44 S. E. 719; and for an excellent collation of authorities involving injury to intending street car passenger, see A. L. R., note following the case of Villa v. Union Electric Railways Company, 51 R. I. 384, 155 A. 366, 75 A. L. R. 282, note pages 285 to 296. Hence our conclusion of the initial inquiry is that defendant owed to plaintiff the duty to use only reasonable care compatible with the practicable operation of its bus.

The evidence of plaintiff and that of defendant, in all essential particulars, conflicts. In view of the jury's resolving this conflict in plaintiff's favor, we must, in the appraisal of this case, as every trial court should do in the consideration of a motion for a directed verdict, entertain every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, and assume as true those facts which the jury may properly find under the evidence. Boyce v. Black, 123 W. Va. 234, 15 S. E. 2d 588; Fielder v. Service Cab Co., 122 W. Va. 522, 11 S. E. 2d 115.

John Stinson, aged fifteen, testified for plaintiff that he was seated on the left side of the bus in the first seat behind the driver, as it approached the bus stop; that when the bus was thirty-five or forty feet away he saw the crowd push plaintiff off the sidewalk; that there were eighty or ninety people on the sidewalk; and that when the bus "came in sight everyone rushed up there trying to get on it first". The witness further testified that plaintiff was sixty or sixty-five feet from the corner; that he did not see any boys playing or scuffling, but saw plaintiff trying to push himself back on the sidewalk...