Edgerton v. Norfolk Southern Bus Corp.

• Decision Date: 26 April 1948
• Citation: 47 S.E.2d 409,187 Va. 642
• Parties: EDGERTON. v. NORFOLK SOUTHERN BUS CORPORATION et al.
• Court: Virginia Supreme Court

47 S.E.2d 409

187 Va. 642

EDGERTON.

v.NORFOLK SOUTHERN BUS CORPORATION et al.

Supreme Court of Appeals of Virginia.

April 26, 1948.

Rehearing Denied June 14, 1948.

[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court of City of Portsmouth; Floyd E. Kellam, Judge.

Action by Gertrude H. Edgerton, administratrix of the estate of Kenneth Earl Edgerton, deceased, against Norfolk Southern Bus Corporation and others, to recover for decedent's wrongful death. Judgment for defendants notwithstanding verdict for plaintiff and plaintiff brings error.

Affirmed in part, reversed in part and final judgment.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATELY, BUCHANAN and MILLER, JJ.

Wm. G. Maupin, of Norfolk, and Clyde W. Cooper, of Portsmouth, for plaintiff in error.

Jas. G. Martin & Sons, of Norfolk, Tom E. Gilman, of Portsmouth, and Williams, Cocke & Turstall, of Norfolk, for defendants in error.

BUCHANAN, Justice.

Kenneth Earl Edgerton, a twelve-year-old boy, was killed by a bus which was owned by Norfolk Southern Bus Corporation, herein referred to as the Bus company, and then being driven by Robert J. Ferebee.

The bus was coming out of a bus terminal which was owned and operated by Richmond Greyhound Lines, Incorporated, herein referred to as the Greyhound company. The boy's death was caused by the left rear wheel of the bus running over his head and crushing his skull. The accident happened on High street in Portsmouth on August 14, 1946, in daylight, about 5 o'clock in the afternoon of a clear day.

His mother, as administratrix, brought suit against the Bus company, Ferebee and the Greyhound company. The negligence charged against Ferebee and the Bus company was failure to keep the bus under proper control, to keep a proper lookout, to blow the horn and to stop on emerging from the terminal. The negligence charged against the Greyhound company was failureto keep in operation a bell and light previously used to warn pedestrians that a bus was coming out of the terminal.

There was a trial by jury which resulted in a verdict for the plaintiff for $10,000 against all three of the defendants. This the trial court set aside and entered judgment in favor of the defendants. This appeal brings under review the correctness of that ruling.

High street, in Portsmouth, runs east and west. The terminal building of the Greyhound company is on the south side of the street in the 100 block, which is bounded on the west by Crawford street and on the east by Water street. This block is heavily traveled by both pedestrians and vehicles. At its eastern end are the ferries to Norfolk and the Seaboard Air Line station.

The terminal building is located nearer to Crawford street on the west than to Water street on the east, it being stated in argument that it is about 40 feet from the Crawford street corner. It is built flush with the building line on the south side of High street and the buses emerge from a tunnel on its west side immediately onto and across the sidewalk into the street. This sidewalk is 20 feet 10 inches wide. The tunnel itself is just wide enough to permit the passage of a bus, and buses coming out cannot be seen by people walking on the sidewalk except by those directly in front of the tunnel. Likewise, the driver of the bus coming out cannot see persons approaching from either side on the sidewalk until after the front of the bus has entered the sidewalk

Prior to this accident the City Manager of Portsmouth communicated with the Greyhound company as to the danger of the existing conditions, and following that the Greyhound company installed and began to operate on March 28, 1946, an electric device to warn persons on the sidewalk that a bus was coming out. By this device a beam of light 26 feet 4 inches back from the mouth of the tunnel would be interrupted by an outgoing bus, which caused a bell to ring and a red light to come on at the front of the tunnel. This signal was operated until June 21, 1946, when it was put out of operation by an accident and it remained out of operation until August 17, 1946, three days after the boy was killed.

When this signal device became out of order, the manager of the terminal called the Bus company's dispatcher and told him to issue instructions to all of his drivers to be sure to stop and blow their horns before crossing the sidewalk. This had been a standing order before that time. Ferebee, the driver of the bus that ran over the boy, knew the signal device was not operating and had instructions to blow his horn on coming out of the tunnel.

At the conclusion of the plaintiff's evidence and again at the conclusion of all the evidence, the defendants moved to strike out the plaintiff's testimony; and after verdict they moved to set it aside and to enter judgment for them for insufficiency of the plaintiff's evidence, or else to set aside the verdict and award them a new trial for errors committed during the trial.

Defendant Ferebee, called for cross-examination as an adverse witness, estimated that his bus was about 26 or 27 feet long (the manager of the terminal said its length was 20 feet 10 inches). He testified that from the front end of the bus to his seat was a foot or a foot and a half and he could not see to the right or left until he started out of the tunnel; that he stopped and sounded his horn, looked both ways, saw his way was clear and continued on out; that when his front wheels were in the street he looked to his right and saw a Greyhound bus coming off the ferry; that the driver of that bus motioned for him to come on out and he continued in low gear at a speed he judged to be three to five miles an hour and came out of the tunnel; that he stopped and sounded his horn before any part of his bus had emerged from the tunnel and he could not then see except directly in front of him; that nothing had happened up to the time the Greyhound driver motioned him to go ahead, and he did not see a man in front of him who had to dodge to keep out of his way, and that he did not see the boy, but the front end of his bus did not hit him; that when his front wheels got about to the middle of the street and his back wheels were off the sidewalk, he heard somebody hollo; that he stopped and came back and found the boy lying in the street.

No witness for the plaintiff saw the bus strike the boy, but three of her witnesses testified they saw the wheel of the bus run over him. Sam Warren was walking west on High street about the middle of the sidewalk when the bus emerged from the tunnel. He testified that he did not see it stop or hear any horn or other warning and he had to step "good and fast" to get out of its way; that after he stepped around the bus somebody screamed and as he turned and looked this child was under the bus and seemed to be crawling the same way as the bus was going; that the child was then on the sidewalk about 3 ¹/₂ feet from the street and about the middle of the bus, the front of which was then just hitting High street; that when the bus got out on the sidewalk the boy turned around on his elbows and started to crawl from under the bus but the rear wheel got him and ran over his head; that he did not meet the child coming east from Crawford street and he was positive that no child came from that direction.

Edwin R. Turner was standing in a news stand on the southwest corner of Crawford street, about 125 feet away, looking east down High street toward the ferry through a window. He testified that he saw the bus coming out and when he saw the boy he was under the bus trying to get up when the wheel caught him; that the boy was then on the sidewalk close to the curb; that he had not seen the boy between him and the bus.

Captain Ferris was in front of the bus station on the sidewalk when the accident happened. The station, or waiting room, adjoins the tunnel on the east. He testified that he was in front of the tunnel and saw the bus driver close the door of the bus back through the tunnel at the landing zone, 50 or 60 feet from the sidewalk; that he then turned around and was just starting through the door of the waiting room when he heard somebody shout. He turned around and saw the bus crossing the sidewalk. The rear end of the bus was then just clear of the sidewalk. At that time a lady fell on the sidewalk in front of the waiting room door. He thought she had been struck by the bus and kneeled down to see about her., She had fainted, evidently, from seeing the boy run over. When he looked up from her the bus was out in the street and the boy's body was lying in the gutter on the west side of the sidewalk driveway, his feet just about touching the driveway slope into the street. He testified that the driver did not blow his horn when he came out of the tunnel. He said there was parking space for two taxis between the tunnel and the Crawford street corner and that at the time of the accident two cars were parked there.

Mrs. Vick, a passenger on the bus, testified that the driver did not stop before he came out of the tunnel on to the sidewalk. A police officer testified that after the accident the boy was lying with his face in the street and his feet in the gutter close to the curb on the west side of the driveway.

Mrs. Edgerton, the boy's mother and the administratrix, testified that Kenneth was twelve years old on April 28, 1946; that he left home about 3:30 that afternoon to go with his small cousin who was to catch a bus to Newport News, after which Kenneth had permission to go to a picture show in the High Theatre next to the bus station on the east; that he was just an ordinary child, small for his age, obedient, bright in school where he was in the fifth grade, and that he knew his way around town.

On the case as thus made for the plaintiff it was not error for the trial court to overrule the motion to strike, as will more fully appear from the discussion of the facts following the statement of the defendants' evidence.

For the defendants, Kocen,...