Dietrich v. Community Traction Co., 38623

• Decision Date: 29 December 1964
• Docket Number: No. 38623,38623
• Citation: 30 O.O.2d 22,203 N.E.2d 344,1 Ohio St.2d 38
• Parties: , 30 O.O.2d 22 DIETRICH, Appellant, v. The COMMUNITY TRACTION CO., Appellee.
• Court: Ohio Supreme Court

Page 38

1 Ohio St.2d 38

203 N.E.2d 344, 30 O.O.2d 22

DIETRICH, Appellant, v. The COMMUNITY TRACTION CO., Appellee.

No. 38623.

Supreme Court of Ohio.

Dec. 29, 1964.

Syllabus by the Court

1. A common carrier of passengers has a duty to exercise the highest degree of care to afford its passengers an opportunity to alight in a reasonably safe place.

2. A passenger is not discharged at a 'reasonably safe place' merely because he is not injured in the very act of alighting.

3. A motorbus common carrier may be liable for injuries proximately resulting from its negligence in failing to afford a passenger an opportunity to alight in a reasonably safe place even though the passenger had alighted and had taken two or three steps before he was injured.

This action was instituted by plaintiff, appellant herein and herein referred to as plaintiff, to recover damages for personal injuries resulting from the alleged failure of defendant, appellee herein and herein referred to as defendant, to discharge plaintiff in a safe place.

On June 18, 1961, at approximately nine p. m., plaintiff, an 82-year-old man, was a passenger on a bus operated by defendant. Plaintiff alighted from the bus at a designated bus stop near the intersection of Delaware and Hollywood Avenues in the city of Toledo. After alighting, plaintiff proceeded toward the public sidewalk, approximately four feet from the curb.

Plaintiff claims that as he was putting his right foot up onto the sidewalk his left foot slipped into a hole causing him to fall backwords on his left hip. Defendant denies the existence of a hole at that spot.

The terrain between the sidewalk and curb was mostly bare ground with scattered clumps of grass. It sloped upward from the curb to the sidewalk. The surface was uneven, containing bumps and holes. At the west end of the bus stop was a large tree. Near the east end of the bus stop were traffic signs, the bus stop sign and a metal box on a stand.

Plaintiff was discharged to the east of these signs. At this end of the bus stop, the visibility was relatively poor since the branches of the tree blocked the street lights.

A verdict in favor of the plaintiff was returned by the jury. The court overruled motions by the defendant for judgment notwithstanding the verdict and for a new trial and entered judgment on the verdict in favor of the plaintiff.

On appeal, the Court of Appeals determined that, since plaintiff had taken two or three steps from the bus, he had lost his status of passenger at the time he fell, and that, therefore, the trial court erred in overruling defendant's motion for judgment notwithstanding the verdict. The judgment of the Common Pleas Court was reversed and judgment rendered in favor of defendant.

The Court of Appeals found that its judgment is in conflict with the judgment of the Court of Appeals for Hamilton County in Cincinnati Street Ry. Co. v. Mueller, 51 Ohio App. 314, 200 N.E. 770, and with the judgment of the Court of Appeals for Cuyahoga County in O'Reilly, Admr. v. Cleveland Ry. Co., 68 Ohio App. 537, 42 N.E.2d 452. Each of those cases permitted recovery for a plaintiff who had alighted and proceeded some distance at the time he was injured.

William D. Driscoll, Toledo, for appellant.

Fuller, Seney, Henry & Hodge, Gerald B. Riley and Larry W. McCormack, Toledo, for appellee.

MATTHIAS, Judge.

The Court of Appeals in the instant case held that the defendant bus company owed no duty to a passenger who had alighted and taken two or three steps before he was injured. On the same question, in the Mueller and O'Reilly cases, supra, the Courts of Appeals for Hamilton and Cuyahoga Counties allowed recovery for the passenger, even though he had alighted and proceeded some distance at the time he was injured.

Section 6, Article IV of the Ohio Constitution, provides as follows:

'* * * whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination. * * *.'

The obvious purpose of this section is to require this court to determine the proper rule of law to be followed throughout the state, when the judgment of one Court of Appeals is in conflict with the judgment of another Court of Appeals on the same legal question.

It is, therefore, our duty in the instant case to determine the proper rule of law concerning the responsibility of a common carrier to a passenger who has already alighted and is injured as a result of condition at or near the spot of alighting.

It is generally recognized that the duty of a common carrier of passengers is to exercise the highest degree of care for the safety of its passengers consistent with the practical operation of the system. 8 Ohio Jurisprudence (2d), 622, Carriers, Section 176; paragraph one of the syllabus of Jones v. Youngstown Municipal Ry. Co., 133 Ohio St. 118, 12 N.E.2d 279. This duty continues until the passenger is given an opportunity to alight in a reasonably safe place. 13 C.J.S. Carriers, § 723, p. 1353; 8 Ohio Jurisprudence (2d), 603, Section 151; Mahoning and Shenango Ry. & Light Co. v. Leedy, 104 Ohio St. 487, 492, 136 N.E. 198.

Defendant claims that it may not be held liable in this case since it did not own the area where plaintiff alighted and was required by ordinance (Section 21-17-8, Toledo Municipal Code) to stop within designated areas. Such circumstances are relevant to the question of negligence and may be considered by the jury in determining whether defendant exercised the required degree of care. What is required of a bus company in order to satisfy its duty to passengers might well be different from what is required of a carrier that provides and maintains a platform or other area for passengers to alight. On the other hand, more may be required of a motorbus carrier than of one who operates a street railway system. See Cleveland Ry. Co. v. Crooks, 125 Ohio St. 280, 282, 181 N.E. 102. Nevertheless, defendant has the duty to exercise great care to afford its passengers the opportunity to alight in a reasonably safe place. It is not immune from liability for breach of this duty even though the location is owned by another and the defendant's ability to select a safe place is limited to places within the designated bus stops. Woodard v. Saginaw City Lines, 365 Mich. 273, 277, 112 N.E.2d 512; Sprout v. Oklahoma Ry. Co., 207 Okl. 118, 247 P.2d 972; Beahan v. St. Louis Public Service Co. (Mo.App.) 213 S.W.2d 253.

A common carrier of passengers has an obligation to exercise the highest degree of care to afford its passengers an opportunity to alight in a reasonably safe place. Brown v. Metropolitan Transit Authority, 341 Mass. 690, 693, 171 N.E. 869; Harris v. Atlantic Greyhound Corp., 243 N.C. 346, 90 S.E.2d 710, 58 A.L.R.2d 939; 9 A.L.R.2d 938, 946; 13 C.J.S. 1353, Carriers, Section 723; 14 American Jurisprudence (2d) Carriers § 984, p. 405; 8 Ohio Jurisprudence 2d 636, Section 194. It is not absolved from liability for breach of that duty merely because the passenger is not injured in the very act of alighting or at the exact time and place when and where he alights. Peterson v. City of Seattle, 51 Wash.2d 187, 316 P.2d 904; Parker v. San Francisco, 158 Cal.App.2d 597, 323 P.2d 108; Columbus Transportation Co. v. Curry, 104 Ga.App. 700, 122 S.E.2d 584; Feldotto v. St. Louis Public Service Co. (Mo.App.) 285 S.W.2d 30; Houston Transit Co. v. Zimmerman (Tex.Civ.App.) 200 S.W.2d 848, 851; 13 C.J.S. Carriers § 723, p. 1353. A passenger is not discharged at a 'reasonably safe place' merely because there is no hazard at the precise spot he alights. No one could seriously contend that a place with a concealed cliff or quicksand some feet...