G. A. Nichols Co. v. Lockhart

• Decision Date: 29 September 1942
• Docket Number: Case Number: 30491
• Citation: 1942 OK 309,129 P.2d 599,191 Okla. 296
• Parties: G. A. NICHOLS CO. et al. v. LOCKHART
• Court: Oklahoma Supreme Court

1942 OK 309

129 P.2d 599

191 Okla. 296

G. A. NICHOLS CO. et al. v. LOCKHART

Case Number: 30491

Supreme Court of Oklahoma

Decided: September 29, 1942

Syllabus

¶0 1. CARRIERS--Passenger justified in assuming motor carrier has taken proper precaution to insure safety in alighting.

Persons alighting from a motorbus on the invitation, express or implied, of the carrier's agent in charge are justified in acting upon the assumption that the carrier has taken proper precaution to insure their safety in alighting.

2. APPEAL AND ERROR--Counsel must request additional instructions to make omissions thereto reversible error.

The rule is well established that, where the instructions of the court do not cover all the phases of the case, counsel is bound to call the court's attention to the omission by an appropriate request for additional instructions, or be precluded from making such failure available as reversible error.

3. SAME -- NEGLIGENCE --Instruction on contributory negligence not erroneous because court failed on its own motion to instruct that evidence of plaintiff might be considered on issue.

An instruction on the issue of contributory negligence, in the absence of proper and timely request of counsel, is not erroneous merely because the court failed on its own motion to advise the jury that the evidence of the plaintiff might be considered in arriving at its conclusion on the issue.

4. ACTION---Right to maintain joint action against motor carrier and his liability insurance bondsman.

A joint action may be maintained against a motor carrier and his liability insurance bondsman, under the provisions of section 3708, O. S. 1931, as amended by section 4, ch. 156, of the Act of the Legislature approved April 12, 1933 (47 O. S. 1941 § 169).

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Action by Alice A. Lockhart against G. A. Nichols Company, a corporation, and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Clayton B. Pierce and Truman B. Rucker, both of Oklahoma City, for plaintiffs in error.

E. P. Ledbetter, of Oklahoma City, for defendant in error.

GIBSON, J.

¶1 This is an action by a passenger against a motor carrier and its surety to recover for personal injuries allegedly sustained while alighting from a bus and as the proximate result of the carrier's negligence. Judgment was for plaintiff on the verdict, and defendants appeal.

¶2 The injury occurred on a county highway in the community known as West Nichols Hills. According to the allegations of the petition as supported by plaintiff's evidence the defendant carrier operated a motorbus for hire along the highway aforesaid and was accustomed to taking on and discharging passengers at points most convenient to their homes; there were no regular stations established for that purpose. Plaintiff and members of her family were frequent passengers on the bus. The driver was acquainted with the members of plaintiff's family and was accustomed to stopping directly opposite the driveway entrance to her premises to allow them to enter or leave the bus. The driveway was the more suitable place for that purpose, since at that point the paving and the shoulders of the road were smooth without depressions or holes, while elsewhere near the paving was worn away and the shoulder rough with erosion and uneven, with holes and depressions, etc. The injury occurred about 10 o'clock p.m. Instead of bringing the bus to a stop at the driveway, the driver allowed it to go some 20 feet beyond, where it stopped directly in front of plaintiff's house. She alighted and stepped in a depression and turned her ankle, resulting in the injury for which she now seeks compensation. Plaintiff was aware of her position when she left the bus, but did not see the depression. She did not signal or request the driver to stop. He knew she expected to alight at the usual place.

¶3 Defendants challenge the sufficiency of the evidence to establish primary negligence.

¶4 We are of the opinion, however, that the evidence was sufficient to go to the jury.

¶5 Our statute requires of a carrier such as the defendant to use the utmost care and diligence for the safe carriage of its passengers; it must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. 13 O. S. 1941 § 32. Our decision in Muskogee Electric Traction Co. v. Latty, 77 Okla. 156, 187 P. 491, is fairly controlling of this question. The general rule as there stated reads as follows:

"Persons embarking on or alighting from an interurban electric car upon on invitation, expressed or implied, of the company's agents in charge of such car, are justified in acting upon the assumption that the company has taken proper precautions to insure their safety. One of such precautions is to avoid stopping its cars at places where it is not safe for passengers to embark or alight. The stopping of a car at a place where people are standing awaiting to get on board is an implied invitation to such persons to take passage on the car if they so desire."

¶6 Though the rule was applied specifically to electric interurban cars, it will apply as well to motorbuses operating on similar schedules. There the court quoted with approval and followed generally certain language employed by the court in McGovern v. Interurban Ry. Co., 136 Iowa, 13, 111 N. W. 412, 12 L. R. A. (N. S.) 476, as follows:

"While it was not the duty of the defendant operating a car which, for the accommodation of passengers, was stopped at any highway crossing where they desired to alight, to provide a passenger platform at each of such crossings, it was its duty to exercise at least reasonable care to enable plaintiff to alight with as little danger as practicable, and if the car was stopped, and plaintiff invited to alight at a place more hazardous than that at which the car might conveniently have been stopped, then the defendant was negligent. The question was properly for the jury."

¶7 Since there was evidence in the instant case to show that the bus was stopped at a place somewhat more hazardous than the driveway, a place at which it may have been conveniently stopped, the defendant could have been guilty of negligence. But under the evidence we cannot say as a matter of law that the defendants did, or did not, breach a legal duty owed the plaintiff. Whether or not the place where plaintiff was invited to alight was sufficiently hazardous to constitute an element of negligence was for the jury to determine. And the other element of negligence, whether the bus could have been conveniently stopped at the safer place, was likewise for the jury. The evidence on that point was in conflict.

¶8 In support of their contention that the evidence was insufficient to establish primary negligence defendants rely on the rule obtaining in Pennsylvania and certain other states to the effect that the carrier is not liable in cases of this character except in instances where the place at which the car stops is manifestly dangerous; that the ordinary defect in the public highway is not, in law, a dangerous place. Murtha v. City of Philadelphia, 130 Pa. Super. 277, 197 Atl. 513.

¶9 However, by reason of our decision in Muskogee Electric Traction Co. v. Latty, supra, we feel committed to the rule that the jury -must determine whether the place was unsafe in cases of this particular character involving the duties of common carriers toward their passengers. By this we mean to say that when there is evidence to show that the place where the car was stopped was more hazardous than that at which it usually stopped or could have been conveniently stopped on the particular' occasion, the jury must determine whether the carrier was negligent in permitting the passenger to alight at that point, and whether the injury sustained was the proximate result of such negligence.

¶10 Next, defendants say the trial court erred in instructing the jury to the effect that to permit a passenger to alight at a place more hazardous than that at which the bus might conveniently have been stopped would constitute negligence.

¶11 The instruction was to the effect that if the bus was stopped at the time and place alleged to permit plaintiff to alight and that such place was more hazardous under the prevailing circumstances than that at which the bus might conveniently have been stopped, and the conditions were known or should have been known by the operator of the bus, then the defendant carrier would be guilty of negligence.

¶12 In view of the decision in the Latty Case, supra, we must hold that the instruction was a fair statement of the law in view of the evidence and was in no way prejudicial to the rights of the defendants.

¶13 Objection is also made to those instructions that would place the burden of proof of contributory negligence on the carrier without advising the jury that the evidence of the plaintiff might also be considered in ascertaining whether plaintiff was guilty of contributory negligence.

¶14 Defendants say that plaintiff's own evidence shows contributory negligence on her part. In such case, say defendants, an instruction placing the burden on defendant to prove...