Cleveland v. Danville, Etc., Co.

• Decision Date: 02 March 1942
• Docket Number: Record No. 2497.
• Citation: 179 Va. 256
• Court: Virginia Supreme Court
• Parties: MRS. FLORA CLEVELAND v. DANVILLE TRACTION AND POWER COMPANY.

Page 256

179 Va. 256

MRS. FLORA CLEVELAND v. DANVILLE TRACTION AND POWER COMPANY.

Record No. 2497.

Supreme Court of Virginia, Richmond.

March 2, 1942.

Present, All the Justices.

1. CARRIERS — Injuries to Passengers — Carrier Is Not Insurer. — Carriers are not insurers of the safety of their passengers. The law imposes upon them varying measures of degrees of care which differ according to the circumstances and conditions which obtain.

2. CARRIERS — Injuries to Passengers — Liability Based on Negligence Proximately Causing Injury. — A common carrier is only liable where the injury complained of was proximately caused by its negligence.

3. CARRIERS — Injuries to Passengers — Negligence Never Presumed. — The rule that negligence will never be presumed and that the burden rests upon the plaintiff to prove it affirmatively is not changed by the standard of care which a carrier must observe, since it is not an insurer.

4. NEGLIGENCE — Essentials of Liability — Foreseeability Necessary Where Course of Conduct Not Prescribed by Law. — Where a course of conduct is not prescribed by mandate of law, foreseeability of injury to one to whom duty is owed is of the very essence of negligence. If injurious consequences are not foreseen as a result of the conduct, then that conduct is not negligence.

5. CARRIERS — Injuries to Passengers — Safety Measures and Period to Which Rule of Highest Degree of Care Applies. — The rule that a carrier of passengers must exercise the highest degree of care applies only to those means and measures of safety which the passenger of necessity must trust wholly to the carrier. It is in general applicable only to the period during which the carrier is in a certain sense the bailee of the person of the passenger.

6. NEGLIGENCE — Evidence — Accident and Resulting Injury Do Not Prove Negligence. — That there is an accident, and some person is hurt, does not prove negligence.

7. NEGLIGENCE — Definition — Involves a Violation of a Duty Owed to Others. — Negligence, in law, involves the conception of a duty to act in a certain way toward others, and a violation of that duty by acting otherwise.

8. MOTOR VEHICLE CARRIERS — Injuries to Passengers — Duty to See That Selected Bus Stop Is Reasonably Safe. — It is the duty of the operator of a motor bus to exercise reasonable care to see that the place selected for the discharge of a passenger is safe for that purpose.

9. MOTOR VEHICLE CARRIERS — Injuries to Passengers — Selection of Bus Stops. — Where a common carrier does not locate or control areas in which it must stop its busses for the purpose of taking on and discharging its passengers, it is not required to see that such places are the safest which could be designated.

10. CARRIERS — Injuries to Passengers — Highest Degree of Care Is Degree of Care Compatible with Convenient and Satisfactory Conduct of Business. — The rule that a carrier must exercise the highest degree of care for the safety of its passengers is subject to the qualification that such degree of care is that which is compatible with the conduct of its business in a convenient and satisfactory manner.

11. MOTOR VEHICLE CARRIERS — Injuries to Alighting Passengers — Selection of Stopping Place Where Designated Stopping Area Occupied — Case at Bar. — In the instant case an action for damages sustained by plaintiff while alighting from defendant's bus, the city, wherein the accident occurred, located the bus stops and the company had nothing to do with such location and exercised no control over it. The driver of the bus on which plaintiff was riding saw that the regular place for the discharge of passengers was occupied by an automobile and drew up at a private driveway which sloped gradually from where it met the sidewalk to where it met the street. A number of passengers alighted without mishap until the plaintiff stepped off and fell.

Held: That no negligence was involved and that the injury was the result of a plain accident since there was nothing in the condition of the place where the bus stopped which could be manifestly dangerous.

Error to a judgment of the Corporation Court of the city of Danville. Hon. Henry C. Leigh, judge presiding.

The opinion states the case.

Aiken, Sanford & Johnson, for the plaintiff in error.

Crews & Clement, for the defendant in error.

BROWNING, J., delivered the opinion of the court.

Mrs. Flora Cleveland, the plaintiff in the trial court, instituted suit for damages caused by injuries sustained by her in alighting from the defendant's bus which was being operated on the streets of the city of Danville on the evening of November 12, 1940, about six o'clock.

The jury rendered a verdict for the plaintiff, assessing her damages at $500.00. At the close of the evidence, and after the jury had been instructed on the law, and had rendered its verdict, the defendant moved the court to set aside and annul the same because there was no evidence to support it. The court took time to consider this motion, and subsequently sustained it, giving its reasons therefor in clear and terse terms in its excellent opinion which is made a part of the record.

A simple statement of the facts is this:

At about the time stated, the plaintiff, who was employed in a down town department store, boarded the defendant's bus, as she was accustomed to do, for the purpose of going to her home. It was a dark night, and the bus was crowded. Mrs. Cleveland had a seat near its rear exit. As the bus approached its stopping place at which she was to alight, the space, which was the regular place for the discharge of passengers, was occupied by an automobile. The driver of the bus saw this and drove around the automobile, bringing his bus to a stop some twelve or fifteen feet beyond. He drew up at the curbing, or where the curbing would have been, if its continuity had not been broken by a private driveway extending from the street to a residence. This driveway was paved and it sloped gradually from where it met the sidewalk on its way to the street, covering a descent of four inches over the width of the sidewalk, which was three feet. The sidewalk was four inches above the level of the street. The driveway as it crossed the sidewalk, where the curbing would have been, was bounded on each side by curved concrete curbings.

A number of passengers alighted when the bus stopped, all safely and without incident, except Mrs. Cleveland, whose descent was described by one of the plaintiff's witnesses in this language:

"Mrs. Cleveland stepped off, and as she stepped, she hit the curb and fell, and as she fell she said she thought she had broken her ankle."

The city of Danville locates, within its limits, the bus stops, of which there are many. The bus company has nothing to do with it and exercises no control over it. Many of these stops are located over driveways and alleys.

That carriers are not insurers of the safety of their passengers is settled. The law imposes upon them varying measures of degrees of care which differ according to the circumstances and conditions which obtain.

We said in the case of Virginia Elec., etc., Co. Lenz, 158 Va. 732, 164 S.E. 572, quoting from the case of C. & O. Ry. Co. Baker, 150 Va. 647, 143 S.E. 299, 301, that:

"A common carrier is not an insurer of the safety of its passengers against all accidents, and is only liable where the injury complained of was proximately caused by its negligence." C. & O. Ry. Co. Hibbs, 142 Va. 96, 128 S.E. 538, 41 A.L.R. 1083; Virginia Ry., etc., Co. McDemmick, 117 Va. 862, 86 S.E. 744.

Speaking of the general doctrine that negligence will never be presumed, but the burden rests upon the plaintiff to prove it affirmatively, we said in the case first mentioned:

"This rule is not changed by the standard of care which the carrier must observe. It...