Fleming v. City of Seattle

• Decision Date: 04 November 1954
• Docket Number: No. 32817,32817
• Citation: 275 P.2d 904,45 Wn.2d 477
• Parties: Allce FLEMING, an Individual, and as the personal representative of the heirs and as the administratrix of the estate of Leo P. Fleming, deceased, Respondent, v. CITY OF SEATTLE, a municipal corporation, Appellant.
• Court: Washington Supreme Court

Page 477

45 Wn.2d 477

275 P.2d 904

Allce FLEMING, an Individual, and as the personal representative of the heirs and as the administratrix of the estate of Leo P Fleming, deceased, Respondent, v. CITY OF SEATTLE, a municipal corporation, Appellant.

No. 32817.

Supreme Court of Washington, En Banc.

Nov. 4, 1954.

Rehearing Denied Dec. 28, 1954.

A. C. Van Soelen, Arthur Schramm, Seattle, for appellant.

Reischling & Chan, Seattle, for respondent.

HAMLEY, Justice.

Leo P. Fleming died as a result of injuries sustained when he fell from a city of Seattle transit bus, after being pushed by the operator. His widow, Alice Fleming, brought this action for wrongful death on behalf of herself and their three children.

At the first trial, the jury brought in a verdict of $11,000, but the trial court granted a new trial because of errors in the instructions. At the second trial, the jury awarded plaintiff a verdict of $55,580, segregated as follows: For the widow, $30,000; for the three children, $7,000, $8,000, and $10,000, respectively; for funeral expenses, $580. The trial court reduced the amount awarded to the widow to $12,000, and, after plaintiff consented to the remission, denied the alternative motions for judgment notwithstanding the verdict, or for a new trial. Judgment in the sum of $37,580 was thereupon entered for plaintiff. Defendant appeals.

Under appellant's first assignment of error, it is argued that Fleming was not a passenger at the time of the accident, and that the motion for judgment n. o. v. should therefore have been granted. In the alternative, it is argued under assignments of error Nos. 3, 7, and 8, that the question of Fleming's status on the coach was for the jury, and that the trial court erred in instructing the jury, as a matter of law, that he was a passenger. These assignments will be considered together.

When Fleming boarded the bus at Seventh avenue and Union street, in Seattle, he was in an intoxicated condition, and was unsteady on his feet. He had money to pay his fare, but failed to do so when he entered the bus. He went directly to a seat on the left side of the coach, three or four seats behind the driver. He then fell asleep, or half asleep, or at least appeared to have done so. The driver proceeded to the next stop, and there called back to Fleming to come forward and pay his fare. Fleming made no response. The bus made one other stop and the driver made the same request. Fleming gave no indication that he heard the driver, and did not pay his fare.

When the coach reached Ninth avenue and Madison street, the operator again asked Fleming for his fare. Receiving no response, the operator went back to where Fleming was seated. He again asked for the fare, and this time Fleming said, 'Didn't I pay?' Fleming also asked for information about Harborview hospital. The driver told him that after he had paid his fare he would tell him what he wanted to know. The driver also observed that, 'All you people want to do is ride the bus for free.'

Fleming remarked that the driver was a 'mean man' or a 'tough guy,' whereupon the driver seized him by the lapels and raised him to his feet. Fleming then consented to pay his fare, and reached into his pocket for some money. In doing so, he dropped a coin on the floor of the bus. When he reached down to pick it up, he twice nudged or bumped into the driver. The driver then pushed Fleming on the shoulder toward the fare box and said, 'Go right down there and pay your fare,' or words to that effect.

It was this push which resulted in Fleming's death. He lost his balance and staggered toward the fare box, struck the rail guarding the box, and caromed backwards out the open front door. He received head injuries which resulted in his death. The driver testified that he did not push Fleming for the purpose of ejecting him from the bus.

The relationship of carrier and passenger arises from contract, express or implied. Fenlon v. Chicago, Milwaukee & St. P. R. Co., 99 Wash. 289, 169 P. 863. Such a contract is in existence when a person, intending to become a passenger and pay his fare when demanded, having the means to do so, is permitted to board the coach. Broyles v. Central of Ga. Ry. Co., 166 Ala. 616, 52 So. 81; Gulf, M. & N. Ry. Co. v. Bradley, 167 Miss. 603, 142 So. 493.

Fleming boarded the coach intending to become a passenger, and had the means to pay his fare. While he did not immediately pay his fare, and failed to respond to several demands that he do so, he consented to pay and was endeavoring to do so prior to being pushed. His actions thus establish his intention to pay. The several cases which have been cited, concerning the presumption or lack of presumption of such intention, are therefore inapplicable.

Had the driver pushed Fleming in an effort to eject him for nonpayment of fare, prior to any tender of the fare, it may be that the relationship of carrier and passenger could be regarded as never having come into existence. A tender made after steps have been commenced to remove the person comes too late, and the operator or conductor is justified in removing the person from the coach. Gates v. Quincy, O. & K. C. Ry. Co., 125 Mo.App. 334, 102 S.W. 50.

But where a person who has not paid his fare on demand tenders it before any steps are taken to remove him from the coach, the fare must be accepted and the relationship of carrier and passenger exists. Baltimore & O. R. Co. v. Norris, 17 Ind.App. 189, 46 N.E. 554; Mangum v. Norfolk & W. Ry. Co., 125 Va. 244, 99 S.E. 686, 5 A.L.R. 346.

Here, the tender was made before Fleming was pushed. Moreover, as the driver himself testified, no effort was made to eject Fleming. Under the facts summarized above, we therefore hold that the trial court correctly instructed the jury, as a matter of law, that a relationship of carrier and passenger existed at the time Fleming was pushed by the driver.

Under the first assignment of error, appellant also argues that it should be held, as a matter of law, that appellant's driver was not negligent, or that such negligence, if any, was not a proximate cause of the accident, because the sustaining of injuries by Fleming as a result of being pushed by the operator was not reasonably foreseeable.

In contending that the sustaining of injuries by Fleming was not reasonably foreseeable, appellant argues that the act of the driver was an automatic reaction after being twice bumped by decedent. It is further argued that there was nothing in decedent's condition at the time to indicate that, upon being pushed, he would stagger backward fourteen feet or more and strike the fare box and railing in such a manner as to turn him around and cause him to fall out of the door of the bus.

There was testimony to the effect that the operator's act of pushing Fleming was not an automatic reaction, but was done in a spirit of contempt and anger, for the purpose of directing Fleming to the fare box. It is undisputed that Fleming was obviously intoxicated and unsteady on his feet. The operator knew that the front door of the bus was open at the time. Further, appellant's argument is based on the assumption that Fleming's seat was fourteen feet from the fare box, when in fact the distance was not more than seven feet.

Whether foreseeability is being considered from the standpoint of negligence or proximate cause, the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable. Instead, the question is whether the actual harm fell within a general field of danger which should have been anticipated. Berglund v. Spokane County, 4 Wash.2d 309, 103 P.2d 355; McLeod v. Grant County School Dist., 42 Wash.2d 316, 255 P.2d 360.

The jury was warranted in finding that the general field of danger which should have been anticipated here was that decedent was in such an intoxicated condition that, if thrown off balance, he might fall in such manner as to injure himself. The actual harm sustained by decedent fell within this general field of danger. It therefore could not be held, as a matter of law, that the injuries sustained by Fleming were not a reasonably foreseeable result of the push which he received from the driver.

Under assignment of error No. 6, appellant contends that its requested instruction on foreseeability should have been given to the jury.

In our opinion, instruction No. 11, given by the court, adequately covered the subject-matter of the requested instruction. The instruction which was given told the jury that a person is responsible for the natural and probable consequences of his act according to ordinary and usual experience, but is not responsible for a consequence which is merely possible according to occasional experience.

The evidence delineated above, with respect to the push given Fleming by the driver, also disposes of the ninth assignment of error, concerning the trial court's refusal to give a requested instruction on self defense. In view of the uncontradicted evidence, such an instruction would not be applicable in this case.

Assignment of error No. 4 relates to the trial court's refusal to give appellant's requested instruction No. 1. This instruction would have told the jury that, while one of the alleged acts of negligence was the stopping of the bus seven feet from the curb, this would not be negligence on the part of the bus operator.

Appellant excepted to the court's instruction No. 1, in which this allegation was submitted to the jury as one of the issues which it had to determine. Following a colloquy with the court, appellant withdrew this exception. Having done so, we do not believe that appellant may now complain because the issue in question was not withdrawn by the giving of the requested instruction.

In any event, it seems to us highly unlikely the distance of the bus from the curb entered into the jury's deliberations. The negligence which was emphasized in all of the evidence was...