Dominguez v. Sw. Greyhound Lines Inc.

• Decision Date: 16 January 1945
• Docket Number: No. 4835.,4835.
• Citation: 49 N.M. 13,155 P.2d 138
• Parties: DOMINGUEZv.SOUTHWESTERN GREYHOUND LINES, Inc.
• Court: New Mexico Supreme Court

49 N.M. 13

155 P.2d 138

DOMINGUEZ

v.SOUTHWESTERN GREYHOUND LINES, Inc.

No. 4835.

Supreme Court of New Mexico.

Jan. 16, 1945.

Appeal from District Court, Santa Fe County; William J. Barker, Judge.

Action by Madeline H. Dominguez against Southwestern Greyhound Lines, Inc., to recover for injuries sustained in a fall at entrance of defendant's bus station. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Expert testimony that maintenance of a step 1 3/4 inches high at entrance to bus depot was negligent because people generally are used to steps of about 6 inches in height could not be relied on to establish liability of bus company to injured passenger who fell when passing through entrance way in view of common knowledge that there was no danger so substantial that a reasonable man would have anticipated injury and guarded against it.

[155 P.2d 138 , 49 N.M. 14]

Iden, Adams & Johnson, of Albuquerque, for appellant.

Carl H. Gilbert, of Santa Fe, and Arthur Livingston, of Los Angeles, Cal., for appellee.

MABRY, Justice.

Plaintiff-appellee Dominguez brought suit and, upon trial to jury, recovered from defendant-appellant judgment in the sum of $5,000 for personal injuries allegedly suffered when she stumbled over or at a step at the entrance to appellant's bus station at Santa Fe. The negligence charged against appellant was that of maintaining a step one and three-fourths inches in height at the immediate front door entrance to the station. Appellant denied the allegation of negligence and pleaded contributory negligence on the part of the appellee.

The appellee, a woman sixty-four years of age, weighing two hundred eighty-five pounds, went to appellant's bus station in Santa Fe for the purpose of taking a bus to Albuquerque. There was a small step some one and three-fourths inches in height at the entrance to the station and almost flush with the outside door jamb. As she went out of the station after purchasing her ticket, appellee stumbled on this step, or exit, injuring her ankle. She then got on a bus for Albuquerque. After arriving there she complained of her injury to one of the officials at the Albuquerque station, who sent her to the Lovelace Clinic where her injured ankle was treated and an X-ray taken. She suffered a great deal from the ankle thereafter, and was hospitalized for some weeks, incurring considerable expense. Appellee walked into the station over the same step that she allegedly stumbled over coming out, but she did not see the step either time. She was looking straight ahead, ‘following the crowd’.

There are numerous assignments of error and these are argued under five points, as follows: (1) The court erred in admitting in evidence Plaintiff's Exhibit No. 3 and the testimony of the witness Dr. William Randolph Lovelace relative thereto; (2) there is not sufficient substantial evidence to sustain the verdict and judgment; (3) the court erred in giving instruction No. 12 to the jury; (4) the court erred in refusing appellant's requested instruction No. 2; (5) the court erred in overruling appellant's motion for a new trial.

It might be said that under the evidence much doubt could be entertained as to whether appellee was in fact injured by any accident at the step. She had been suffering for a long time from arthritis in the limb and ankle of which she complains. But, since the question of liability is to be resolved by the conclusion we reach under another assignment made and point urged, the question whether accidental injury was suffered need not be further noticed.

Under our view of the case we need consider only point 2, which goes to the question whether there be substantial evidence upon which to rest the verdict and judgment. Appellant's case must stand or fall upon the answer to the query whether a jury may say that it is negligence, under the circumstances of this case, to maintain a step, or door sill, one and three-fourths inches high at the entrance to the station. That is to say, should not the court itself have resolved the question and held as a matter of law that no negligence was shown. We believe the question should have been so resolved; that it was not a jury question.

The alleged accident happened in broad daylight and there is no claim, or showing, that there was improper lighting, any foreign substance on or near the step, or other circumstance which could have been considered as increasing the hazard to appellee or others using the entrance, over and above the very nature of the structure itself. There is no showing that appellee could not have seen the step had she been looking where she was stepping upon leaving the station; or that the crowd of which she speaks as employing the door passage about this time actually obscured her vision or crowded her in the passage at the time, even if that would have been important.

We had much the same situation in Seal et al. v. Safeway Stores, Inc., 48 N.M. 200, 147 P.2d 359, 361, a case recently decided That was a case where a customer sought to recover of the owner of the premises for alleged negligence in maintaining outside the door entrance, and some twelve or fifteen feet therefrom, a three or four inch change of level where one steps down from the private walk on the premises to a parking area provided for the convenience of customers with cars. Plaintiff in that case appealed from a judgment following an instructed verdict for defendant, the company. We there said:

‘The drop in elevation of some 3 or 4 inches from the paved walk to the paved parking space, where plaintiff was walking at the time of the accident, cannot be said to present a hidden or concealed danger for any person using it in broad daylight especially, and keeping a reasonable watch as to where he is walking, and with no unreasonable distractions. Certainly plaintiff, upon entering or leaving a store of this character, and undertaking to walk though and upon the parking grounds, must take notice that such changes in elevations are not uncommon and are to be expected.

‘Likewise she is not to be absolved from the exercise of reasonable watchfulness as to where she is placing her feet simply because she is carrying a large bundle of groceries which, would ordinarily, and without change of position of the bundle, or of her face, obscure her view of her feet.’

Certainly there is presented here no less a question of nonnegligence as a matter of law than was before us in the Seal case. If it can be said that the maintenance of a step-down, or change in walk elevation, of three to four inches, under the circumstances of that case, would not present a case for the jury-a question whether or not it constituted negligence on the part of the one maintaining it-it certainly could not be said that the circumstances of the case before us do.

Appellee weighed approximately two hundred eighty-five pounds at the time of the accident. The doorway in question was of the average size and, obviously, no one but appellee could have been using it at the time. This drop in elevation occurred immediately outside the door and probably within two or three inches of the outside of what might be called the door sill. In fact this higher elevation might be referred to as a door sill. No particular reason can be gathered from the record for the maintenance of this slight drop from the inside floor elevation. It might have been that it was maintained as it was for the purpose of affording drainage away from the station floor of rain water that might beat against the door from rain storms which frequently blow down from the North, for example.

A common carrier is required to exercise only reasonable and ordinary care in providing station facilities for the protection and accommodation of passengers using such stations, 13 C.J.S., Carriers, § 717, pp. 1333, 1334; and there is, of course, a corresponding duty resting upon passengers and others using such facilities to watch their step and otherwise exercise ordinary care. See Illinois Central R. Co. v. Sanderson, 175 Ky. 11, 192 S.W. 869, L.R.A.1917D, 890; Seckler v. Pennsylvania R. Co., 113 N.J.L. 299, 174 A. 501. In the case of Van v. Teche Lines, Inc., La.App., 164 So. 267, it was held that the maintenance of a floor in a bus station with a difference in elevation of three inches between floor of dressing room and floor of the station proper was not negligence so as to render the company liable for injuries to a party sustained thereby. There the court said: ‘The difference in elevation of three inches between the floor of the dressing room and that of the station itself does not, in our opinion, constitute any hazard to the occupants of the waiting room, and cannot be regarded as negligence.’

Our attention is likewise called to the case of Ware v. Evangelical Baptist B. & M. Society of Boston, 181 Mass. 285, 63 N.E. 885, an early and often quoted case where it is said: ‘The injury complained of was due to a fall received by plaintiff while passing from one of the rooms in the Tremont Temple Building, so called, in Boston, belonging to the defendant, to the hallway or corridor on which the room opened. The floor of the room was 4 7/8 inches above the floor of the hallway, and it was this difference in height which caused the plaintiff, as she stepped forward out of the room, to fall. She had entered the room a few minutes before through the same door. She had never been in the building previously, if that is material. It is contended that this construction was defective, and this is the negligence alleged. It is a matter of common observation that in entering and leaving stores, halls, railway car stations and platforms, office buildings, and other buildings and...