Dishinger v. Suburban Coach Co.

• Decision Date: 13 July 1951
• Docket Number: No. 1,No. 33511,33511,1
• Parties: DISHINGER v. SUBURBAN COACH CO., Inc., et al
• Court: Georgia Court of Appeals

Page 242

66 S.E.2d 242

84 Ga.App. 498

DISHINGER v. SUBURBAN COACH CO., Inc., et al.

No. 33511.

Court of Appeals of Georgia, Division No. 1.

July 13, 1951.

Rehearing Denied July 25, 1951.

Syllabus by the Court.

1. The Code, § 68-311, provides: 'All motor vehicles used in transporting school children to and from schools shall be distinctly marked 'School Bus' on both front, rear, and sides thereof, in letters of not less than five inches in length and so plainly writted or printed and so arranged as to be legible to persons approaching such busses, whether traveling in the same or opposite direction, or upon approaching said school busses from any direction * * *.' The operation of a bus by the defendant coach company in transporting school children under the circumstances alleged in the petition without the bus being marked 'school bus,' as provided by the above code section, was negligence per se; and the trial judge erred in sustaining the special demurrers of the coach company and its insurance carrier dealt with in division 1 of the opinion, infra, for the reasons therein stated.

2, 3, 4. The trial judge did not err in sustaining the special demurrers dealt with in the corresponding divisions of the opinion.

5. The trial court properly sustained the special demurrer of the insurance carrier on the ground of misjoinder for the reason stated in division 5 of the opinion, but erred in sustaining the special demurrer of the coach company in this respect, as said defendant could not take advantage of the question raised in this ground of demurrer.

6. The petition was not subject to general demurrer for the reasons stated in division 1 of the opinion, and the trial judge erred in sustaining the general demurrer and the special demurrers dealt with in said division of the opinion.

Mary Kae Dishinger, by her mother, Mrs. John S. Saylor, as next friend, brought suit against Suburban Coach Company, Inc., Carolina Casualty Insurance Company, its insurance carrier, and Henry M. Riley, the petition as amended alleging the following: Suburban Coach Company, Inc. is a common carrier operating under and by virtue of certificates of public convenience and necessity issued by the Georgia Public Service Commission. The defendants are liable to the plaintiff in the sum of $150,000 as shown hereinafter. The Suburban Coach Company, Inc., as a part and parcel of its operation as a motor common carrier of passengers, operates motor buses used regularly in transporting school children to and from Cascade Heights School. Your petitioner was, on September 13, 1950, a regularly enrolled pupil in the second grade of such school, and on said date at about 4 p. m. finished her classes in the afternoon session of the school. At that time a bus of the Suburban Coach Company, Inc. was parked on the school grounds, waiting for the plaintiff and other pupils to be conducted to the bus by the school officials, and at such time the plaintiff marched out of the school room with her class and onto the school bus with other pupils of the school. No persons other than school children were on the bus as passengers at the time the plaintiff entered it, and during all times hereinafter mentioned no person other than school pupils rode on the bus as a passenger. The said bus was not distinctly marked 'school bus' on either the front, rear or sides thereof in any way whatsoever, and was not so marked with letters equal to or exceeding five (5) inches in length. There were no markings of any sort on the bus indicating that it was used in transporting school children to and from school. The plaintiff became a passenger of the Suburban Coach Company, Inc. After the bus was completely loaded with school children, including the plaintiff, the driver of the bus drove it along the streets in the residential community near the school, depositing school children at various places along the route. The plaintiff had ridden the bus prior to the date mentioned. She lives with her parents at 1800 Sandtown Road, S. W., which house is located at the southeast corner of the intersection of Sandtown Road and Westridge Road. At all times prior to the date hereinabove mentioned the route taken by the bus was north on Westridge Road, so that when it stopped at the intersection of Westridge Road and Sandtown Road the plaintiff was able to disembark from the bus on the southeasternly corner of the said intersection on the side of the street adjacent to her home. On the day hereinabove mentioned the Suburban Coach Company, Inc. changed the routing of the bus so that it traveled in a westerly direction on Sandtown Road, stopping at the intersection of it and Westridge Road at the northeasterly corner of the intersection, discharging its passengers on the northern side of Sandtown Road. This change in routing was made without notifying the plaintiff and her parents of the change. On the day mentioned, at or about 4:30, the bus arrived at the said intersection while traveling in a westerly direction on Sandtown Road, and was brought to a stop at the curb line of the northern side of Sandtown Road about fifteen (15) feet east of the northeast corner of the intersection. The bus doors were opened by the operator thereof, and the plaintiff was invited to disembark from the bus at that point. Approximately twelve (12) feet behind the bus an automobile, driven by C. J. Aycock, going in the same direction and on the same side of the road as the bus, had come to a stop. No other automobile traveling on Sandtown Road was visible to the plaintiff. She walked around the front of the bus and proceeded to cross Sandtown Road at the intersection.

At the said time the defendant Henry M. Riley was driving a 1946 Chevrolet Style Master Sedan automobile in a westerly direction on Sandtown Road, operating the said automobile at a high and excessive rate of speed, to wit, between 35 and 40 miles per hour. When he came in view of the bus it was parked and standing motionless at the said intersection, and the automobile of A. J. Aycock was standing motionless approximately 12 feet behind the bus, and approximately six young children had left the bus and were walking away from it in various directions clearly visible to the said defendant. When the said Riley approached the intersection a growth of shrubbery at the northeast corner of the intersection and the presence of the motionless vehicles described above made the intersection a blind corner, so that his vision along Westridge Road to the north was obstructed. When he approached the motionless vehicles he did not reduce his speed or sound his horn or give any other warning of his approach, but did turn his automobile sharply to the left so as to pass to the left of the motionless vehicles, and the plaintiff had traveled more than one-half the way across Sandtown Road, which road is approximately twenty nine feet and four inches wide. When the said Riley turned his automobile as aforesaid he was approximately sixty feet east of the plaintiff, who was in the approximate center of Sandtown Road as above described. He did not attempt to slow his vehicle down or bring it to a stop until he was approximately twenty feet away from the plaintiff. The plaintiff sought to escape the oncoming automobile of the said Riley by running towards the south side of Sandtown Road and reached a point less than 10 feet from the south curb of the said street when she was suddenly and violently struck by the front center section of the said Riley's automobile. When he was approximately 20 feet away from the plaintiff he applied the brakes of his automobile to such an extent that the wheels of the automobile locked. Nevertheless, so great was the speed of the automobile that it continued in a westerly direction sliding and skidding on the motionless tires, and after sliding approximately 20 feet it was still going at such a great rate of speed that when the automobile struck the plaintiff it knocked her up into the air and approximately 30 feet in a westerly direction, where she fell with great force and violence against the paved surface of the said street. When the automobile so struck the plaintiff, both of its left wheels and both of its right wheels were on the south side of the center of Sandtown Road, which was the left side of the said road in the direction the automobile was traveling, and the right side of the automobile was approximately 10 feet south of the left side of the parked bus. It was alleged that the defendant Suburban Coach Company, Inc., was negligent:

(a) In failing to mark the bus 'school bus' on the front, rear and sides thereof in letters five (5) inches or more in length so plainly written or printed and so arranged as to be legible to persons approaching the said bus traveling in the same direction as the bus, in violation of the law of the State of Georgia, which violation was negligence per se.

(b) In failing to mark the bus in any way whatsoever so as to advise persons approaching the bus from the rear that it was used for transporting school children.

(c) In changing the route taken by the bus so that the plaintiff was invited to disembark from the bus on the side of Sandtown Road opposite her place of residence.

(d) In changing the route taken by the bus so that the plaintiff was invited to disembark from the bus on the side of Sandtown Road opposite her place of residence without advising the plaintiff or her parents that such change was being made.

(e) In failing, by and through its driver, servant and agent, to keep a watch-out so as to observe the automobile of the defendant Riley approaching from the rear of the bus (f) In failing by and through its driver, servant and agent, to warn the plaintiff of the approaching automobile of the defendant Riley from the rear of the bus.

(g) In failing, by and through its driver, servant and agent, to furnish the plaintiff passenger a safe place to alight from the...