Greater Richmond Transit Co. v. Wilkerson, 901183
| Decision Date | 07 June 1991 |
| Docket Number | No. 901183,901183 |
| Citation | 242 Va. 65,406 S.E.2d 28 |
| Parties | GREATER RICHMOND TRANSIT COMPANY, et al. v. Clementine M. WILKERSON. Record |
| Court | Virginia Supreme Court |
Brenda L. Page (Karen G. Eggleston, on brief), Richmond, for appellee, Wilkerson.
Present: All the Justices.
This is a personal injury case against a common carrier. It presents questions concerning the sufficiency and admissibility of evidence and the propriety of certain jury instructions.
On May 12, 1989, Tyrus R. Edwards parked a 1988 Flexible Series bus owned by her employer, Greater Richmond Transit Company, at a bus stop in the parking lot of Regency Mall in Henrico County. Because she had a 15-minute layover, Edwards left the bus and went into the mall. As she and other bus drivers had often done in the past, Edwards left the front door of the bus open to enable prospective passengers to enter, await the driver's return, and pay their fares.
Several such riders, including Clementine M. Wilkerson, entered the bus and seated themselves, awaiting Edwards's return. A few minutes after they were seated, the bus started rolling backward. All the riders jumped off the rolling bus, and Wilkerson sustained a broken leg when she hit the ground.
Upon Edwards's return, she found that the bus had rolled over the curb into which she had turned its front wheels, traveled some distance, and struck a parked car. Edwards claimed that the parking brake and interlock system were still engaged, just as she had left them. 1
Wilkerson filed this action against the bus company and Edwards (collectively, the bus company). At a jury trial, Wilkerson contended that Edwards negligently parked the bus on an incline without engaging the parking brake or its related interlock system.
Wilkerson's witness, John Hundley, III, the bus company mechanic responsible for maintenance of the brakes and interlock system, testified that no one reported any trouble with those mechanisms prior to this incident. Hundley also testified that a few days after the accident, without altering the brakes or the interlock system, he took the bus to Regency Mall, tested the brakes and interlock system in the general area where Edwards had stopped the bus, and found that they were in proper operating condition.
Hundley and Robert D. Baldwin, a mechanical engineer who had familiarized himself with the brakes, described the Overruling a number of the bus company's objections to the court's rulings upon the evidence, instructions, and the bus company's motions to strike Wilkerson's evidence and to set aside the jury's $300,000 verdict, the trial court entered judgment on the verdict. The bus company appeals.
braking system as one that is "fail safe" because if the air pressure system malfunctions, the brakes automatically engage, preventing the bus from moving. Therefore, Hundley and Baldwin opined that the bus would not have rolled if Edwards had engaged the parking brake and interlock.
In accordance with well-settled appellate principles, we consider the evidence in the light most favorable to Wilkerson, the party who prevailed below.
The bus company maintains that the trial court should not have permitted Hundley to describe the results of his tests of the parking brake and interlock system. It argues that because this was a reconstruction of the circumstances of the accident, Wilkerson was required to show that the conditions under which Hundley's tests were made were the same or substantially similar in essential particulars to those existing at the time of the accident. However, Wilkerson offered the evidence merely to show that Hundley's tests indicated that the unaltered brakes and interlock system were not defective. Hundley's tests were not a reconstruction of the circumstances of the accident. Accordingly, Wilkerson was not required to show that the suggested minor variations in grade, weight load, and air pressure in the parking brake and interlock system would not have caused a properly functioning brake and interlock system to fail. Therefore, we find no error in admitting the results of these tests.
Next, the bus company argues that the trial court incorrectly admitted Baldwin's testimony because he had not qualified as an expert on Flexible buses. 2 Baldwin testified: (1) that he was a general engineering consultant; (2) that approximately 10% of his 40-year experience had involved mechanical engineering problems, and that he currently was working with pneumatic, electric, and hydraulic control systems; and (3) that his knowledge of the bus' braking system was based on the manufacturer's maintenance and operator's manuals. Given this evidence, we cannot say that the trial court abused its discretion in permitting Baldwin to qualify as an expert witness. Noll v. Rahal, 219 Va. 795, 800-801, 250 S.E.2d 741, 744-45 (1979).
The bus company argues that Wilkerson did not establish a prima facie case of negligence because she must show more than that the accident resulted from one of two causes, for one of which the bus company is responsible and for the other of which it is not. At trial, the bus company contended that the evidence established: "(1) an inference of operator error; and (2) an inference of unexplained mechanical failure." (Emphasis added.) In support of the second inference, the bus company relies upon the testimony of Edward E. Gray, Jr., a bus company supervisor, who said that about five years earlier, when he was aboard another bus equipped with a braking and interlock system similar to Edwards's bus, it inexplicably began to roll although its hand brake and interlock system were engaged. 3 Here, however, Wilkerson's circumstantial evidence of the lack of mechanical defect in the brakes and interlock
system at the time of the accident, if believed, negated an inference that the accident occurred because of some unexplained mechanical failure. Hence, the evidence was sufficient to support a finding that Edwards was negligent in failing to engage the parking brake and interlock system.
The bus company contends that the trial court erred in granting and refusing certain instructions. As explained hereinafter, we find no reversible error in these rulings.
The bus company argues that the court should not have instructed the jury that Wilkerson was a "passenger" because Wilkerson's amended motion for judgment alleged that Wilkerson
was an invitee of the defendants in that she had presented herself as a willing, available and accepted passenger ... [and that it was the defendants' duty] to use the highest degree of care to operate said bus free from negligence and with due regard for the safety of the passengers on board.
(Emphasis added.) We think that these allegations sufficiently allege, albeit inartfully, that Wilkerson was a passenger.
The bus company also claims that the instruction was improper because the evidence showed that the bus company had not "accepted" Wilkerson's fare and that she was not yet under "the care, custody, or observation of [the bus company]," and thus she was not a passenger entitled to a higher degree of care. Although we have not previously considered this exact issue, we held in Norfolk & W. R.R. Co. v. Groseclose, 88 Va. 267, 272, 13 S.E. 454, 455 (1891), that "[t]he purchase of a ticket, before entering a railroad train is not necessary to constitute a person a passenger." And a number of other jurisdictions have held that passengers who enter or attempt to enter a carrier's premises with the carrier's express or implied consent in preparation for transportation for consideration, attain passenger status upon such entry or attempt. Wise v. Fannin, 306 Ky. 327, 329, 207 S.W.2d 764, 765 (1948); Fenton v. Minneapolis St. Ry. Co., 252 Minn. 75, 78-79, 89 N.W.2d 404, 408 (1958); Oklahoma Ry. Co. v. Roebuck, 205 Okla. 549, 550-51, 240 P.2d 775, 777 (1951). Thus, we conclude that under the facts of this case Wilkerson became a passenger upon her entry into the bus. 4
Next, the bus company contends that the trial court erroneously refused to permit the jury to consider whether Wilkerson assumed the risk of injury both in entering the bus at a time when Edwards was not present, and by jumping from the moving bus. Assumption of the risk requires that "the nature and extent of the risk must be fully appreciated...
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