Crist v. Washington, Virginia and Maryland Coach Co., 4310

• Decision Date: 17 January 1955
• Docket Number: No. 4310,4310
• Court: Virginia Supreme Court
• Parties: MARY L. CRIST v. WASHINGTON, VIRGINIA AND MARYLAND COACH COMPANY, INCORPORATED. Record

Page 213

85 S.E.2d 213

196 Va. 642

MARY L. CRIST v. WASHINGTON, VIRGINIA AND MARYLAND COACH COMPANY, INCORPORATED.

Record No. 4310.

Supreme Court of Appeals of Virginia

January 17, 1955.

McGinnis & Tymoff, for the plaintiff in error.

Boothe, Dudley, Koontz & Boothe, for the defendant in error.

JUDGE: SMITH

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

This is an action by Mary L. Crist, hereinafter called plaintiff, against Washington, Virginia and Maryland Coach Company, Incorporated, hereinafter called defendant, to recover $375,000.00 for personal injuries claimed to have been sustained when the defendant's bus on which she was riding as a passenger ran into a curb and threw her from her seat to the floor.

The jury upon a trial of the case returned a verdict in favor of the defendant which was set aside and a judgment for $6,000.00 awarded the plaintiff, to which action of the court we granted the plaintiff a writ of error.

Plaintiff excepted to the action of the trial court and assigned the following errors:

'1. The Court erred in refusing to grant a new trial, limited solely to the quantum of damages.

'2. The Court erred in refusing to grant a new trial, hence denying the Plaintiff the right to have a jury determine the amount of damages.

'3. The Court erred in determining the damages in that said amount was arbitrarily arrived at and said amount was inadequate and insufficient and not based upon the evidence as offered on behalf of the Plaintiff.'

Defendant excepted to the action of the court in setting aside the verdict for the defendant and in refusing to enter judgment on the verdict and has properly presented its exception by assignments of cross-error.

During the early afternoon of December 22, 1950, the plaintiff was a passenger on one of the defendant's buses, which was travelling from Washington, D.C. over Columbia Pike in Arlington county, at which time the weather was bad, it was snowing and the roads were very slick.

The bus, proceeding very slowly, came down a long hill before reaching the turn from Columbia Pike into Washington Boulevard where an island divides the traffic coming into Washington Boulevard from that coming out. In making the short right turn onto Washington Boulevard the roadway is wide enough for only one lane of traffic. As the driver was negotiating this turn his bus skidded slightly, and the left front wheel bumped the curbing of the island; however, the bus did not stop its forward motion but continued on toward its destination.

The plaintiff was sitting next to the aisle on the first seat on the right hand side of the bus. When the bus struck the curb she fell from her seat to the floor. Another passenger, Mrs. Ethel Oliff, and her granddaughter immediately helped the plaintiff from the floor of the bus, but the driver was not aware of her fall until she told him of it upon arriving at her destination, which was a considerable distance from where the incident occurred.

The first and decisive question in this case is whether the trial court erred in setting aside the verdict of the jury in favor of the defendant.

A case in many respects similar to the one before us is Atl. Greyhound Corp. v. Shelton, 184 Va. 684, 36 S.E. (2d) 625, an action against a bus company for the death of a passenger which occurred when the bus collided with a trailer truck. The trial court set aside a verdict for the bus company and entered judgment against it for $15,000.00. On appeal it was held that notwithstanding the bus driver owed the decedent the highest degree of care, the question of negligence was for the jury. Upon entering final judgment for the bus company, Justice Hudgins, now Chief Justice, said:

'While a verdict disapproved by the trial court is not entitled to the same weight as a verdict approved by it, if the record contains credible testimony to support the finding of a jury, such finding cannot be disturbed either by the trial court or by this court. The applicable rule has been stated and restated many times.

'In Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245, 259, 108 S.E. 15, Judge Burks, after reviewing many Virginia cases on the subject, summarized their holdings as follows: 'It is not sufficient that the judge if on the jury, would have rendered a different verdict. It is not sufficient that there is a great preponderance of the evidence against it. If there is conflict of the testimony on a material point, or if reasonably fair- minded men may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependent upon the weight to be given the testimony, in all such cases the verdict of the jury is final and conclusive and cannot be disturbed either by the trial court, or by this court, or if improperly set aside by the trial court, it will be reinstated by this court.'' 184 Va., at pages 692, 693.

It is well settled that a common carrier must exercise the highest degree of practical care for the safety of its passengers, but this degree of care does not mean that the carrier is an insurer of its passengers' safety or require of it perfect human care. Virginia Transit Co. v. Tidd, 194 Va. 418, 73 S.E. (2d) 405; Tri-State Coach Corp. v. Stidham, 191 Va. 790, 62 S.E. (2d) 894; Atl. Greyhound Corp. v. Shelton, supra; City of Portsmouth v. Madrey, 168 Va. 517, 191 S.E. 595; 3 Michie's Jur., Carriers, § 49, p. 738.

Hence, a common carrier of passengers is not liable for the ordinary jerks and jolts which are necessarily incident to the use of the conveyance, but it is liable for injuries resulting from jerks or jolts which are not necessarily incident to the use of the conveyance or which are unusually sudden or violent. Richmond Greyhound Lines v. Ramos, 177 Va. 20, 12 S.E. (2d) 789, (noted in 138 A.L.R. 225); 13 C.J.S., Carriers, § 750, p. 1410; 10 Am. Jur., Carriers, § 1343, p. 213.

To recover damages in an action against a common carrier for personal injuries, the injured passenger, like any other plaintiff, must prove his case by a preponderance of the evidence and he does not prove it merely by showing that he was injured. This burden does not shift to the defendant and the rule is not changed by the standard of care which the carrier must observe. Cleveland v. Danville, etc., Co., 179 Va. 256, 18 S.E. (2d) 913; Virginia E. & P. Co. v. Lenz, 158 Va. 732, 164 S.E. 572; 3 Michie's Jur., Carriers, § 93, p. 805.

With these controlling principles in mind and in the light of the verdict we will examine the evidence in some detail. When the case came on for trial plaintiff was without counsel; and the trial judge, under most difficult circumstances, exhibited commendable patience and extended her all the assistance that he could have properly given.

The plaintiff's testimony consisted of her opening statement to the jury which she later chose to adopt as her sworn testimony. Much of this testimony was hearsay and contained references to the defendant's insurance carrier. Her description of how the accident occurred was as follows: 'This bus, at Columbia Pike and Washington Boulevard, at the Military Cemetery, made a turn, a right turn. It ran up on an island in the middle of the street. It knocked me off of my seat on the floor, with my feet sort of underneath of me. It came down off of the curb or the island and hit the curb on the right-hand side.

'The driver did not do anything for me. He never stopped the bus. I do believe I sat in the middle of the floor for five minutes. I could not move. I could not pull my legs out. I was just like I was paralyzed. No one helped me. A lady on the long front seat reached over and pulled my dress down. I was sitting on the right-hand seat facing the driver, and it threw me to the left.

'When I got to Columbia Pike -- I mean, when I got to Glebe Road and Sixth Street, I could not move. I had terrible pains in the lower part of my back. There was no sleet. There was no ice. It had been snowing a little, which was a very wet snow, not much, at that.'

Mrs. Elizabeth Kuntz, a passenger on the bus, testified for the plaintiff as follows:

'* * * I was going home from work, and it had been snowing that day, I do remember about that. The streets were slick and as far as I know, the bus hit one of the curbs, but it is a short turn there and the driver was driving very slowly and had been all the way down the hill because I do not know if it was the rush hour or whether we had gotten off early. I remember I was on my way home from the...