Estate of Lee

• Decision Date: 08 March 1978
• Docket Number: No. 19399,19399
• Parties: ESTATE of Andrew LEE. Lucille LEE as sole surviving child of Andrew Lee, Appellant, v. CONTINENTAL TRAILWAYS, Appellee.
• Court: Texas Court of Appeals

Page 392

564 S.W.2d 392

ESTATE of Andrew LEE Lucille LEE as sole surviving child of Andrew Lee, Appellant, v. CONTINENTAL TRAILWAYS, Appellee.

No. 19399.

Court of Civil Appeals of Texas, Dallas.

March 8, 1978.

Rehearing Denied April 5, 1978.

Kim R. Thorne, Thorne, Thorne & Robertson, Grand Prairie, for appellant.

Charles B. Guy, Dallas, for appellee.

AKIN, Justice.

Appellant, Lucille Lee, as sole survivor of decedent Andrew Lee, instituted this wrongful death action against Continental Trailways for negligently ejecting Lee from a bus upon which he was a passenger. About an hour after he was ejected, Lee apparently was struck and killed by another vehicle near the same location. Continental Trailways asserted that Lee was ejected because he was creating a disturbance, thus causing the bus driver to fear for the safety of the other passengers. The bus company also alleged that Lee was contributorily negligent in walking upon the roadway. Trial was to a jury which found that the bus driver negligently ejected Lee from the bus and that such action was a proximate cause of his death. The jury further found that Lee walked upon the highway and was struck by a vehicle, causing his death, and that such action was negligence and a proximate cause of his death. Additionally, it found that the bus driver was justified in ejecting Lee from the bus because he had caused a disturbance on the bus and had voided on the bus driver. Finally, the jury found the bus driver seventy-five percent negligent, Lee twenty-five percent negligent, and damages in the amount of $6,214.50. The trial court disregarded the jury findings with respect to the negligence of the bus driver and rendered judgment non obstante veredicto for Continental Trailways, and plaintiff appeals. We hold that the trial court erred in disregarding the jury findings of negligence and proximate cause with respect to the bus driver because there was evidence to support the findings. We also hold that the issues with respect to the bus driver's justification for ejectment of Lee were not controlling issues, and hence should be disregarded. Since there is also evidence of contributory negligence, the jury's finding that his negligence contributed twenty-five percent to his death must stand. Accordingly, we reverse the judgment of the trial court and render judgment for plaintiff for $4,660.50 by reducing by twenty-five percent the total damages found by the jury because of Lee's contributory negligence.

Appellant first argues that the trial court erred in disregarding the jury's finding that the bus driver negligently ejected Lee from the bus, thus proximately causing his death. The bus company, on the other hand, contends that the bus company owed Lee no duty because of his conduct. We cannot agree with the bus company because a common carrier is required to exercise the highest duty of care for the safety of its passengers. St. Louis Southwestern Ry. Co. v. Varnell, 97 S.W.2d 320 (Tex.Civ.App. Texarkana 1936, no writ). This duty is such that the common carrier must exercise a high degree of foresight as to possible dangers which it must guard the passengers against as a very cautious, prudent and competent man would do under the same or similar circumstances. City of Dallas v. Jackson, 450 S.W.2d 62, 63 (Tex.1970). Although a bus driver may have a right to eject a passenger because a passenger causes a disturbance, nevertheless, he owes a duty to eject him at a safe place. Texas Central Railroad Co. v. Rose, 172 S.W. 756 (Tex.Civ.App. Dallas 1915, writ ref'd); Gulf C. & S. F. Ry. Co. v. Green,141 S.W. 341 (Tex.Civ.App. Austin 1911, writ ref'd). Thus, if a driver ejects a passenger at an unsafe place, the carrier is liable for damages proximately resulting from the ejection.

The bus company argues that the issue of ejectment at an unsafe place was not included in the issue as to whether the driver was negligent in ejecting him. We do not agree. Although the controlling issue of whether the bus driver ejected Lee at an unsafe place was not pleaded, evidence on this controlling issue was admitted without objection. Furthermore, since no objection was leveled at the negligence issue as being overly broad, and not the controlling fact-issue, we hold that the issue of ejectment at an unsafe place was submitted and answered within the ambit of the broader issue of negligent ejectment. Texas Rules of Civil Procedure 277 specifically permits submission of broad general issues.

The bus company argues, however, that the trial court was correct in rendering...