Estate of Lindburg v. Mount Pleasant Independent School Dist.

Decision Date22 December 1987
Docket NumberNo. 9553,9553
Citation746 S.W.2d 257
Parties45 Ed. Law Rep. 869 ESTATE OF Misty Dawn LINDBURG, Appellant, v. MOUNT PLEASANT INDEPENDENT SCHOOL DISTRICT and John Gullion, Appellees.
CourtTexas Court of Appeals

Randall C. Roberts, Bruce L. Roberts, Loftis & Roberts, Tyler, for appellant.

Robert Weber, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellees.

GRANT, Justice.

The estate of Misty Dawn Lindburg (hereinafter referred to as "the estate") brought a negligence action against Mount Pleasant Independent School District and school bus driver John Gullion. The suit was brought under the Texas Tort Claims Act, which allows recovery for injuries resulting from the use and operation of a motor vehicle. Tex.Civ.Prac. & Rem.Code Ann. § 101.001 et seq. (Vernon 1986).

The estate contends that the trial court erred in failing to instruct the jury that the driver owed a high degree of care instead of ordinary care to the child, Misty Dawn Lindburg. The estate further complains that the trial court erred in sustaining special exceptions to its first amended petition, in failing to grant its motion for leave to file a trial amendment, and in not admitting a deposition of the defendant bus driver into evidence.

Misty Lindburg was a seven and one-half-year-old child who was struck and killed by a pickup truck after getting off a school bus on October 18, 1984. At the time of her death, she was in the third grade at Mount Pleasant Independent School District and was daily transported to and from school by the school district's bus. She lived in a trailer park on the west side of U.S. Highway 271. There are two entrances to the trailer park, about forty yards apart. The bus driver testified that he normally stopped at both entrances. On the day of the accident, Misty had exited from the northbound school bus with one other student who lived on the east side of the highway. The bus driver testified that he knew that the other child (Jason Hinton) lived in a nearby house on the east side of the highway and would not need to cross it, but that he (the bus driver) did not know where Misty lived. Witnesses testified that Misty walked away from the bus without making any effort to cross the highway. The school bus drove away, and she began walking down the east side of the road toward the other entrance to the trailer park.

A driver of one of the cars following the school bus stopped and attempted to wave Misty across the highway. She refused to cross at that time, but did attempt to cross after the northbound line of cars which had The jury failed to find the school bus driver had been negligent in his operation of the bus, but found Misty Lindberg had been negligent in failing to keep a proper lookout.

been stopped behind the school bus had passed. Misty was struck by a southbound pickup truck while crossing the highway and was killed. The driver, not a party in this case, testified that he had come over a hill and did not see Misty until he hit her.

The estate requested the following definitions (which were refused by the trial court):

"HIGH DEGREE OF CARE" means that degree of care which would have been used by a very cautious, competent, and prudent person under the same or similar circumstances.

"NEGLIGENCE," when used with respect to John Gullion, means failure to use a high degree of care; that is to say, failure to do that which a very cautious, competent, and prudent person would have done under the same or similar circumstances, or doing that which a very cautious, competent, and prudent person would not have done under the same or similar circumstances.

The trial court gave the following definitions to the jury:

"ORDINARY CARE," when used with respect to the conduct of John Gullion, means that degree of care which would be used by a person of ordinary prudence under the same or similar circumstances.

"NEGLIGENCE," when used with respect to the conduct of John Gullion, means failure to use ordinary care; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

The estate argues that the school bus should be considered a common carrier, and as such, it would be held to a high degree of care. 1 City of Dallas v. Jackson, 450 S.W.2d 62 (Tex.1970); City of Houston v. Matthews, 605 S.W.2d 628 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.); Estate of Lee, 564 S.W.2d 392 (Tex.Civ.App.-Dallas 1978, writ ref'd n.r.e.).

A common carrier is defined as one who transports goods or people from place to place for hire without discrimination, for such persons who see fit to employ them. Mayhew v. McFarland, 137 Tex. 391, 153 S.W.2d 428 (1941); Railroad Commission of Texas v. United Parcel Service, Inc., 614 S.W.2d 903 (Tex.Civ.App.-Austin 1981, writ ref'd n.r.e.); Burnett v. Riter, 276 S.W. 347 (Tex.Civ.App.-Beaumont 1925, no writ). The school bus in the present case transported only students of the Mount Pleasant Independent School District, and was not for hire to the general public without discrimination. Therefore the school district did not come within the common carrier classification.

We have examined the early Texas cases to determine why a high, rather than ordinary, degree of care was prescribed for common carriers. According to Galveston City R. Co. v. Hewitt, 67 Tex. 473, 3 S.W. 705 (1887), that duty arises from the hazardous character of the business and the fact that human life is imperiled by it. According to International and Great Northern Railroad Co. v. Halloren, 53 Tex. 46 (1880), a passenger, by reason of the risk naturally inherent to this mode of travel, has the right to demand that high degree of care and skill which very cautious persons generally are accustomed to. A duty of a high degree of care is also required for people who ride free as well as for the paying customers, because of regard for human life. White v. St. Louis Southwestern Ry. Co. of Texas, 86 S.W. 962 (Tex.Civ.App.1905, no writ); G. C. & S.F. Ry. Co. v. McGown, 65 Tex. 640 (1886).

Looking to other jurisdictions for the reasons for requiring the exercise of a high degree of care by a common carrier, we find the requirement has its foundation in the fact that the carrier assumes almost We have not found any Texas cases that prescribe a standard of care for private or special carriers and passenger carriers not falling within the common carrier classification. We find that the Texas courts have extended the duty to exercise a high degree of care to carriers that transport passengers without requiring the carrier to fall strictly within the common carrier definition. For example, the high degree of care standard has been applied to elevators and escalators. Brewer v. Otis Elevator Co., 422 S.W.2d 766 (Tex.Civ.App.-Houston [1st Dist.] 1967, writ ref'd n.r.e.); Mattox v. C.R. Anthony Co., 326 S.W.2d 740 (Tex.Civ.App.-Beaumont 1959, writ ref'd n.r.e.).

                absolute control of the body and the movements of the passenger, and in the further fact that the passenger commits himself to the watchfulness of the carrier's servants.  Louisville & N.R. Co. v. Hensley, 7 Tenn.Ct.App. 610 (as cited in 13 C.J.S. Carriers § 678, n. 75 (1939).  Another reason given for applying the requirement to passenger carriers is that the passenger does not have the same opportunity to protect himself as in other situations where the rule of ordinary care is applied, and public policy and safety require that carriers be held to the greatest care and diligence in order that the personal safety of passengers is not left to chance or to the negligence of careless agents.   Phillips v. Hardgrove, 161 Wash. 121, 296 P. 559 (1931)
                

The states are divided on the question of the standard of care owed to a student who is a passenger on a school bus. A number of states have held that those engaged in the transportation of school children should be held to a high degree of care. Van Cleave v. Illini Coach Co., 344 Ill.App. 127, 100 N.E.2d 398 (1951); Landry v. Travelers Indemnity Co., 155 So.2d 102 (La.Ct.App.1963); Sepulvado v. General Fire & Casualty Co., 146 So.2d 428 (La.Ct.App.1962); Webb v. City of Seattle, 22 Wash.2d 596, 157 P.2d 312 (1945); Leach v. School District No. 322 of Thurston County, 197 Wash. 384, 85 P.2d 666 (1938); Lempke v. Cummings, 253 Wis. 570, 34 N.W.2d 673 (1948).

We have examined the policy reasons for requiring a high degree of care by a common carrier, and we find no reason why the same...

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2 cases
  • Mount Pleasant Independent School Dist. v. Estate of Lindburg By and Through Lindburg
    • United States
    • Texas Supreme Court
    • February 15, 1989
    ...that the school district owed a high degree of care to its student passengers, similar to the duty owed by common carriers. 746 S.W.2d 257 (Tex.App.--Texarkana 1987). That court further held the school district waived its claim of sovereign immunity by failing to obtain a trial court ruling......
  • American Protection Ins. Co. v. Leordeanu
    • United States
    • Texas Court of Appeals
    • February 13, 2009
    ...lower court. Chesshir v. First State Bank of Morton, Tex., 620 S.W.2d 101, 101-02 (Tex.1981) (per curiam); Estate of Lindburg v. Mount Pleasant Indep. Sch. Dist., 746 S.W.2d 257, 260 (Tex. App.-Texarkana 1988, no writ). In this case, Leordeanu received a favorable judgment below and, theref......

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