Finlayson v. Yellow Cab Co.

• Citation: 56 N.D. 407,217 N.W. 662
• Decision Date: 02 February 1928
• Docket Number: No. 5407.,5407.
• Parties: FINLAYSON v. YELLOW CAB CO. et al.
• Court: United States State Supreme Court of North Dakota

56 N.D. 407

217 N.W. 662

FINLAYSON

v.YELLOW CAB CO. et al.

No. 5407.

Supreme Court of North Dakota.

Feb. 2, 1928.

Syllabus by the Court.

An automobile transportation or taxi company, which holds itself out as ready to receive and transport all who apply for passage and are ready to pay for the service, is a “common carrier.”

A common carrier of passengers for hire is required to exercise the highest degree of care reasonably to be expected from human vigilance and foresight for the safety of its passengers, in view of the mode and character of the conveyance adopted, and consistent with the practical operation of its business.

Evidence of having a lap robe on the floor of a taxi and that, on alighting, a passenger tripped or stumbled over it, fell, and sustained injury is insufficient to justify a finding of negligence of the defendant.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Action by Vivian Finlayson against the Yellow Cab Company, and others. From a judgment for plaintiff, defendants appeal. Reversed, and action dismissed.Conmy, Young & Burnett, of Fargo, for appellants.

Zuger & Tillotson, of Bismarck, for respondent.

ENGLERT, District Judge.

The plaintiff sued to recover damages for personal injuries. There was a verdict for $19,583.33. The defendants appealed from the judgment entered thereon. There are two appeals, one by the Yellow Cab Company, and the other by the four insurance companies. The insurance companies were made parties defendants, under their policies of insurance, insuring the Yellow Cab Company against damages arising from its negligence. Both appeals were argued and submitted together.

The complaint charges that the Yellow Cab Company was “guilty of negligence in failing to furnish an automobile adapted to the safe carriage of passengers, and in failing to exercisereasonable and proper care in operating said automobile, and in failing to furnish a competent driver to operate the same, and as a result of such failure to exercise due care, and through negligence on the part of said defendants and on the part of the driver of said automobile plaintiff, while alighting from said automobile, became entangled in a blanket or robe and a footrest negligently deposited and left by said defendants in said automobile, and that as a result of said negligence plaintiff stumbled and fell from said automobile and thereby, without fault or negligence on her part, sustained severe and permanent injuries. * * *”

All of the defendants “admit that the Yellow Cab Company was engaged in the business of transporting passengers for hire in automobiles, both as an auto transportation company and as a taxicab company.” The defendants deny all charges of negligence, and plead contributory negligence of the plaintiff.

Many errors are assigned and argued on these appeals. The first error argued in the briefs presents the question of whether or not the defendant Yellow Cab Company was negligent.

While there is some dispute between the parties as to the degree of care the Yellow Cab Company was in duty bound to exercise in transporting its passengers, there is no dispute on the claim of the plaintiff that the company was a common carrier of passengers for hire, and was so engaged at the time of the injury.

[1] It is now firmly established that an auto transportation company or taxicab company, which holds itself out as ready to receive and transport all who apply for passage and are ready to pay for the service, is a common carrier. This principle is now so generally applied that it ought not to require the citation of any authority, but if authorities are desired, the cases hereinafter cited, in connection with the degree of care to be exercised by the common carrier of passengers for hire, fully prove the rule.

At the time of the accident, the plaintiff, a young woman, 21 years of age, resided in the city of Bismarck, with her parents. About 3 o'clock in the afternoon of April 4, 1926, the plaintiff returned to Bismarck on Northern Pacific train No. 7, and engaged a taxi of the Yellow Cab Company, driven by Roy Hanson, to take her home. She carried a traveling bag. The taxi was a four-door, two-seated Oldsmobile auto. From the front seat, the driver opened one of the doors to the rear seat, and plaintiff entered. She placed her handbag on the seat beside her, and was then driven to her home. On arriving at her home, she gave the driver a $1 bill, and he returned to her 75 cents. The engine remained running. The driver opened the rear door from the driver's seat, to let her out. He did not leave his seat to help her out of the car. She testified:

“I started to get out, and tripped on a robe, and fell out headfirst.

Q. You say you stumbled and fell? A. Yes. * * *

Q. Now describe the automobile a little fuller, as to inside; what was there on the floor? A. A robe.

Q. By robe, you mean a blanket or something of that kind? A. Yes.

Q. Was it light or dark colored? A. Dark.

Q. Was it folded up? A. No.

Q. Was there anything else there on the floor? A. I didn't notice anything.

Q. Any footrest? A. Yes; there was.

Q. And that was fastened to the floor of the car? A. Yes.

Q. Did you say the robe was folded up? A. No.

Q. Lying loose there on the floor? A. Yes.

Q. And when you stepped out, you say you stubbed your foot, or stumbled on this robe? A. Yes; I tripped on the robe.

Q. You tripped on the robe, and fell out? A. Yes, sir.

Q. And you say you fell headfirst? A. Yes.”

She also testified that she saw the robe in the taxi at the time she entered the same. This is the evidence on which the plaintiff relies and predicates her right to recover, because of the negligence of the defendant Yellow Cab Company.

Being a common carrier of passengers for hire, there is some dispute between the plaintiff and the defendants on the degree of care the defendant Yellow Cab Company must exercise for the safe transportation of its passengers. Whatever controversy may have existed among the earlier decisions of the courts relative to the duty and liability of auto transportation companies, taxicabs, and motorbusses, holding themselves out to the public as ready to receive and transport passengers for hire, it is now well established that the rule applicable to common carriers of passengers for hire generally prevails and applies. Riggsby v. Tritton et al., 143 Va. 903, 129 S. E. 493, 45 A. L. R. 280;Korner v. Cosgrove, 108 Ohio St. 484, 141 N. E. 267, 31 A. L. R. 1193;Anderson v. Yellow Cab Co., 179 Wis. 300, 191 N. W. 748, 31 A. L. R. 1197;Hinds v. Steere, 209 Mass. 442, 95 N. E. 844, 35 L. R. A. (N. S.) 658.

In pronouncing the degree of care that a common carrier of passengers for hire must exercise for the safe transportation of its passengers, the courts have used various words and phrases, in giving expression to their views and in declaring the rule. Some say it requires “the utmost human care.” 1 Hutchinson, Carriers (3d Ed.) § 100, and cases cited. Other courts say it requires “a high degree of care.” Kloran v. Drogin, 99 N. J. Law, 422, 123 A. 760, 31 A. L. R. 1191. Others speak of it as requiring “a very high degree of care.” Riggsby v. Tritton, 143 Va. 903, 129 S. E. 493, 45 A. L. R. 280. And still others, and these are in the majority, say that it requires “the highest degree of care.” Anderson v. Yellow Cab Co., 179 Wis. 300, 191 N. W. 748, 31 A. L. R. 1197;Fleming v. Red Top Cab Co., 133 Wash. 338, 233 P. 639;McKellar v. Yellow Cab Co., 148 Minn. 247, 181 N. W. 348;Dowd v. Atlas Taxicab & Auto Service Co., 187 Cal. 523, 202 P. 870;Ormond v. Wis. Power & Light Co. (Wis.) 216 N. W. 489.

There is very little, if any, difference in the ultimate conclusions reached by the courts on the degree of care to be exercised by a common carrier of passengers. They all exact a very high degree of care. The difference lies in the language used by the courts in reaching their conclusion. As said in 4 R. C. L. 1147:

“The difference in the statements is merely a choice of words, and does not denote conflicting views.”

In Ormond v. Wisconsin Power & Light Company, supra, the court said:

“The duty which a common carrier owes to a passenger is subject to various statements in the books imposing different degrees of care upon the common carrier, all of which require, however, a very high degree of care.”

The Supreme Court of Oregon, in the recent case of Coblentz v. Jaloff, 115 Or. 656, 239 P. 825, had occasion to discuss the varying language used by the courts in declaring the degree of care a common carrier must exercise for the safety of its passengers, and came to the conclusion that they all obligated the carrier to exercise “the highest degree of care.”

In Hinds v. Steere, supra, the court said that a common carrier “was bound to use reasonable care,” and in defining reasonable care, said “this reasonable care should be defined as the highest degree of care consistent with the proper transaction of the business.”

In Gardner v. Boston Elevated Railway Co., 204 Mass. 213, 90 N. E. 534, the court said that a common carrier “is justly held to a very high degree of care for their [passengers'] safety,” and then concluded, in the same sentence, “that he is held to the exercise of the highest degree of care.”

In the recent case of Ormond v. Wisconsin Power & Light Company, supra, speaking of the duty of common carriers, the court said:

“It is liable to them only for ordinary negligence, which means simply a want of ordinary care, as that term is measured with reference to the duty of common carriers.”

Then, in measuring the duty and degree of care, the court said:

“To be true, the care exacted of the common carrier is a high degree of care. To constitute ordinary care, it must be the ‘highest degree of care reasonably to be expected from human vigilance and foresight.”’

[2] It is, therefore, apparent that, while courts use different language and varying words and phrases in reaching their conclusion, the...