Alstead v. Kapper

• Citation: 236 P. 799,135 Wash. 21
• Decision Date: 08 June 1925
• Docket Number: 19305.
• Parties: ALSTEAD v. KAPPER et al.
• Court: Washington Supreme Court

236 P. 799

135 Wash. 21

ALSTEAD v. KAPPER et al.

No. 19305.

Supreme Court of Washington

June 8, 1925

Department 1.

Appeal from Superior Court, Pierce County; Card, Judge.

Action by Jennie Alstead, by her guardian ad litem, Gustava Alstead against Joseph M. Kapper and others. Judgment for plaintiff and defendants appeal. Affirmed.

Ralph S. Pierce, of Seattle, for appellants.

Leo Teats, of Tacoma, for respondent.

ASKREN J.

Appellant appeals from a judgment entered by the court on the verdict of a jury in favor of respondent in an action for personal injuries. The following facts were disclosed by the evidence The appellants, in November, 1923, operated a motorbus carrying passengers in the city of Tacoma, and running to South Tacoma. The bus was of ordinary construction, with a door for entrance and exit placed at the front and right of the bus, and of the customary pay-as-you-enter type. Respondent, with her escort, Wesley Drennon, now her husband entered the bus at Tacoma about midnight, and paid the fare to South Tacoma. The night was dark and very foggy. When respondent first entered the bus she was unable to secure a seat, but afterwards got one near the door. As the bus approached her destination she pressed the button on the side of the car window, which was the ordinary signal for the driver to stop the car at the next crossing. After waiting a few seconds, during which time the bus slowed down for stopping, she and her escort both arose preparatory to alighting. The condition of the weather was such that it was impossible for respondent to see any objects outside of the bus, and to tell whether the car was still moving, but when she got to the door and found it open and felt no motion of the car she thought it had stopped, and thereupon stepped out. The bus had not come to a complete stop, and she fell to the ground and was thrown under the bus, the right rear wheel passing over the middle of her body.

There was testimony establishing the fact that it was customary, and it is a matter of common knowledge, that passenger busses are driven with the door closed, and that they are only opened to allow ingress and egress of passengers. There was testimony to the effect that the door had been open for several blocks, the driver of the bus explaining that it was necessary to have the door open in order to properly drive his car in the dense fog. Drennon and some other passengers also noticed the door had been open for soem time. Some of the passengers testified that they could tell that the bus had not stopped at the time respondent stepped off. Appellant contends that there was not sufficient evidence to go to the jury, inasmuch as the door having been open prior to the time respondent sought to alight, there was no invitation to alight; and secondly, that the act of respondent was not only negligence per se, but was the proximate cause of the accident. An ordinance of the city of Tacoma offered in evidence provided, in section 20, as follows: 'No person shall enter or leave any motorbus when the same is moving. * * *'

Whether the door had been open prior to the time respondent desired to alight, and that fact known to respondent, was a question of fact for the jury to decide, in the light of respondent's testimony to the effect that she did not know it. It does not follow as a matter of law that because several passengers on the car noticed that the door was open that respondent either did notice, or should, in the exercise of reasonable care, have noticed it. Whether the door was open or closed would not ordinarily be a matter of concern to the respondent until the time that she actually desired to alight from the bus, and the fact that others saw the situation which she may or may not have seen made the question one for the jury to determine under all the facts. It was for them to say whether a passenger on a pay-as-you-enter bus, equipped as this one was, having signaled for the car to stop, approaching the point of exit, and there finding the door open, would be justified, under all the facts shown, in assuming that the bus had stopped.

Appellant earnestly contends that the respondent violated a positive duty defined by law when she stepped from the bus while it was in motion, and that under oft-repeated decisions of this court, where the law violated has been enacted for the benefit of the complaining party, it is negligence per se. Rampon v. Washington Water Power Co., 94 Wash. 438, 162 P. 514, L. R. A. 1917C, 998; Bogdan v. Pappas, 95 Wash. 579, 164 P. 208.

Under the ordinance one is guilty of negligence per se who steps off a bus while it is in motion when the person doing so knows, or in the exercise of reasonable care should know that the car was...