Crown Coach Company v. Whitaker

• Citation: 186 S.W.2d 940,208 Ark. 535
• Decision Date: 16 April 1945
• Docket Number: 4-7582
• Parties: Crown Coach Company v. Whitaker
• Court: Supreme Court of Arkansas

186 S.W.2d 940

208 Ark. 535

Crown Coach Company v. Whitaker

No. 4-7582

Supreme Court of Arkansas

April 16, 1945

Appeal from Miller Circuit Court; Dexter Bush, Judge.

Affirmed.

Ned Stewart, for appellant.

Barney & Quinn, for appellee.

OPINION

McFaddin J.

This is an appeal by a common carrier from a judgment awarding damages because of injuries sustained by a passenger.

On February 2, 1943, Mrs. Whitaker, riding on a ticket from Tulsa, Oklahoma, to New Iberia, Louisiana, reached Texarkana Texas, at about 9:30 a.m. Central wartime, on a bus of the Crown Coach Company. The weather was inclement and visibility was poor. Mrs. Whitaker was to change at Texarkana, from the bus of the appellant company to a Tri-State bus, to proceed to Shreveport, Louisiana. The Crown Coach Company used as its terminal the station of the Greyhound lines in Texarkana, Texas, on the west side of State Line avenue. The station of the Tri-State Bus Company was located in Texarkana, Arkansas, on the east side of State Line avenue. Thus the bus stations, although located in different states, are just across the street from each other. Mrs. Whitaker never reached Arkansas; her injuries occurred in the shed of the Greyhound station in Texas.

The Greyhound station has a long shed extending from State Line avenue to the next street to the west. The shed has a concrete floor; it is a wide shed: three busses may be parked abreast. There is a pathway, elevated two or three inches, extending along the south wall of the shed; and doors open from the elevated pathway to the waiting room and ticket offices. On the north side of the shed there is only a wall. The Crown coach on which Mrs. Whitaker was a passenger did not stop next to the elevated pathway, but stopped next to the north wall. It was shown that this bus station, although operated by the Greyhound lines, was used also by the Missouri Pacific busses and the Arkansas Motor Coaches, in addition to the Crown Coach Company; and that a Greyhound bus was due to arrive about the same time as the Crown coach; and that the Greyhound Company used the elevated pathway on which to discharge its passengers, so that the Crown coach was required to park at the north side of the shed and discharge its passengers on the concrete floorway. The passengers could walk across the floorway to the elevated pathway, and then through the doors into the waiting room and out into the street; or they could walk directly east or west to the nearest street exit without going into the waiting room.

When Mrs. Whitaker arrived in Texarkana she asked the bus driver which way she should go to get to the station of the Tri-State Bus Company, and he told her to "go right across the street." After receiving her hand bag, and bidding goodbye to a fellow passenger, Mrs. Whitaker took one or two steps to go out of the shed, just as she had been directed, when she stumbled over a zipper bag or another obstacle, and fell to the concrete floor, receiving a fracture of the left kneecap.

This suit was filed by Mrs. Whitaker for compensation for her injuries. Mr. Whitaker also sued for loss of companionship, services, and society of his wife because of the injuries that she received. The complaint alleged that it was dark in the shed, and that, due to that condition, Mrs. Whitaker stumbled and fell over some obstacle in the path she had been directed to take by the bus driver. The basis of negligence was the alleged darkness of the shed, the claim that it was a dark and rainy day, and that the shed was not sufficiently lighted. The case was tried to a jury, and resulted in a verdict and judgment for plaintiffs. This appeal presents the following issues.

I. The Injuries Sustained by Mrs. Whitaker Occurred in the State of Texas, and the Laws of that State Govern as to Liability, and Are Applied in This Case. St. L., I. M. & S. Ry. Co. v. Brown, 67 Ark. 295, 54 S.W. 865; St. L. & S. F. R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; T. & P. Ry. Co. v. Stephens, 192 Ark. 115, 90 S.W.2d 978; Magnolia Petroleum Co. v. Turner, 188 Ark. 177, 65 S.W.2d 1; see also 11 Am. Juris. 490, and Leflar on "Conflict of Laws," p. 184. This point seems to be conceded by both sides, but we mention it at the outset because some of the rules of law herein stated would not be followed if this case were governed by the decisions of our state.

II. The Degree of Care Due by the Carrier to the Passenger. Of course, Mrs. Whitaker was a passenger at the time of her injury, because she had not left the premises of the carrier. Both sides seemed to concede the general rule stated in 10 C. J. 623: "The relation of carrier and passenger having been constituted continues until the journey, expressly or impliedly contracted for, has been concluded and the passenger has left the carrier's premises, unless the relation is sooner terminated by the voluntary act of the passenger, . . ." (13 C. J. S., "Carrier," § 563, p. 1071.)

While Mrs. Whitaker was still a passenger at the time of the injury, yet she was not within the conveyance; and many courts state that the degree of care owed by the carrier to the passenger who is in the conveyance is greater than the degree of care owed by the carrier to the passenger who is merely on the premises. The trial court gave instruction No. 1 as required by the plaintiff as follows:

"You are instructed that the relation of carrier and passenger existed between the plaintiff, Edna Whitaker, and the defendant, Crown Coach Company, on the morning of February 2, 1943, at the time of the injury complained of in plaintiffs' complaint, and that the defendant then owed to the plaintiff, Edna Whitaker, a high degree of care for her safety, that degree of care being the high degree of care which a prudent and cautious man would reasonably exercise, consistent with the defendant's practical operation and maintenance of its landing premises."

The appellant complains that this instruction is in error, in that it imposes on the carrier a "high degree of care" instead of "ordinary degree of care." In 10 Am. Juris. 189, it is stated:

"Degree of Care Exacted of Carrier. -- The authorities are not agreed as to the degree of care properly exacted of a common carrier with respect to the maintenance of its stations and premises. There are some decisions which uphold the view that a carrier need exercise no more than ordinary or reasonable care in that direction. Other decisions hold the carrier to the exercise of the same high degree of care and skill in the maintenance of its stations as is imposed in the operation of its vehicles."

In the case of St. L., I. M. & S. Ry. Co. v. Woods, 96 Ark. 311, 131 S.W. 869, 33 L. R. A., N. S. 855, the Arkansas Supreme Court followed the "ordinary care" rule; and plaintiff's instruction No. 1 as hereinbefore quoted would be erroneous if we were applying the law of Arkansas.

But, as before stated, we are applying the law of Texas; and our study discloses that Texas follows the "high degree of care" rule; so the instruction is a correct statement of the law of Texas. In St. L. S.W. Ry. Co. v. Gresham, 106 Tex. 452, 167 S.W. 724, a passenger had slipped on one of the steps of the coach as she was alighting. The Supreme Court of Texas affirmed a judgment for the plaintiff, and said:

"The court correctly stated the measure of diligence which the law requires of passenger carriers; that is, the high degree of diligence which would be exercised by very prudent persons under similar circumstances. I. & G. N. Ry. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Allen v. Galveston City Ry. Co., 79 Tex. 631, 15 S.W. 498. The limitation of such diligence to the operation of the cars would be unreasonable and without support in the law."

The case of Ft. W. & D. C. Ry. Co. v. Brown, 205 S.W. 378, decided by the Amarillo Court of Civil Appeals is nearest in point to the facts here. In that case the plaintiff was seated in the station as a passenger awaiting the train, and the seat collapsed and the passenger was injured. The Court of Civil Appeals said:

"Complaint is made of the charge of the court which imposed upon the appellant company in the treatment of their passengers awaiting trains in their depots . . . that high degree of care that a very cautious person would have exercised under the same or similar circumstances on the ground that the rule requiring the exercise of that high degree of care as stated applies only to those duties in connection with the actual transportation of the passenger, and that only ordinary care is required in reference to the condition of its stations and premises occupied by passengers preliminary to or upon termination of the actual transportation. There are some authorities which sustain this proposition. C. J., vol. 10, p. 910; 13 C. J. S. "Carrier," § 682, p. 1264. But it seems to be settled by the decisions of this state that the rule of high degree of care is applicable in both situations stated."

In the case of G. C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 361, 32 A. L. R. 1183, the Supreme Court of Texas cited with approval the case of Ft. Worth & D. C. City Ry. Co. v. Brown, supra on this point of the degree of care required by a carrier to a passenger. So, without laboring the point further, we consider the instruction No. 1 to be a fair statement of the holdings of the Texas courts on the degree of care. The following Texas cases support this statement: International & G. N. R. R. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; International & G. N. R. R. Co. v. Welch, 86 Tex. 203, 24 S.W. 390, 42 A. S. R. 829; Wichita Valley R. Co. v. Williams, 116 Tex. 253, 288 S.W. 425; Gulf, C. & S. F. R. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A. L. R. 1183; Gulf, C....