Johnson v. Continental Southern Lines, Inc.

• Decision Date: 27 May 1959
• Docket Number: No. 9040,9040
• Citation: 74 A.L.R.2d 1328,113 So.2d 114
• Parties: Mrs. Sindy JOHNSON, Plaintiff-Appellee, v. CONTINENTAL SOUTHERN LINES, INC., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 114

113 So.2d 114

74 A.L.R.2d 1328

Mrs. Sindy JOHNSON, Plaintiff-Appellee, v. CONTINENTAL SOUTHERN LINES, INC., Defendant-Appellant.

No. 9040.

Court of Appeal of Louisiana, Second Circuit.

May 27, 1959.

Stafford & Pitts, Alexandria, for appellant.

Donald M. Garrett, R. Hunter Pierson, Alexandria, for appellee.

AYRES, Judge.

This is an action in tort wherein plaintiff seeks to recover of the defendant damages for personal injuries sustained September 19, 1957, while a fare-paying passenger on a common carrier bus of defendant en route from Houston, Texas, to Alexandria, Louisiana. The bus boarded by plaintiff was bound for New Orleans, which required plaintiff to transfer to a bus of her destination at defendant's bus terminal in Kinder, Louisiana. On the arrival of the bus at the aforesaid terminal, plaintiff, in alighting therefrom, stepped on an empty Coca Cola bottle in the aisle covered by a newspaper, precipitating her fall and causing the injuries for which she seeks damages.

Negligence, lack of care and want of circumspection are charged to the bus driver, employee of defendant, in allowing a party to board the bus with Coca Cola bottles, knowing that they would create a hazardous condition once the contents had been consumed and the bottles placed on the floor; in failing to instruct the passenger to bring the empty bottles to the front of the bus, and in failing to pick up the bottles after the contents had been consumed, particularly after their presence was called to his attention, or to properly clean and maintain the aisle in a safe condition for the passengers or to provide plaintiff with a safe mode of travel.

The defendant denied generally and specifically all the charges of negligence directed to its driver, particularly that its driver had any knowledge or notice of the presence of the bottle on the floor of the bus, and, although admitting that plaintiff fell as a result of stepping upon a Coca Cola bottle, defendant contends that plaintiff knew of the presence of the bottle on the floor. Further answering, defendant alleges '* * * that the accident giving rise to this suit was not caused by any negligence on the part of the defendant or its employees', and '* * * in the alternative that the plaintiff knew of the presence of the Coca Cola bottle on the floor of the bus; that her act in stepping upon it under the circumstances was negligence proximately causing the accident, which is specifically pleaded in bar of this suit.'

The trial court held defendant's driver's negligence constituted the proximate cause of the accident for the reason, among others, of his failure to make a proper investigation and inspection of the bus after his attention was called and directed to the presence of empty bottles rolling on or across the aisle, and, accordingly, awarded plaintiff judgment for $3,000 for the personal injuries sustained by her, plus $480.30 for medical expenses incurred in the treatment of said injuries.

From the judgment defendant has appealed, re-urging its driver's freedom from fault and, in the alternative, plaintiff's contributory negligence, and, finally, that the award was excessive. In answer to the appeal, plaintiff asserts the inadequacy of the award and prays that it be increased to $7,500, plus the aforesaid medical expenses.

The facts established by the record may be briefly stated. The driver of the bus out of Houston completed his run at Beaumont and its operation was taken over by one F. G. McClelland. On leaving Beaumont plaintiff occupied the seat immediately to the rear of the driver. Before departing, however, a lady boarded the bus accompanied by three small children, all of whom occupied seats directly across the aisle from plaintiff. The lady brought with her sandwiches and four Coca Colas. En route the children ate the sandwiches and drank the Coca Colas. Some of the contents of both food and drinks was dropped or spilled on the floor of the aisle, which was covered over by a piece of newspaper placed in the aisle by plaintiff. During the journey the empty bottles began to roll on the floor. Plaintiff placed one underneath the driver's seat. When the bus arrived at a railroad crossing about two blocks distant from the bus station or terminal in Kinder, plaintiff picked up another bottle from the aisle and handed it to the driver.

That the driver made no adequate investigation or inspection clearly appears from his own testimony. He made no observation of the condition in the aisle resulting from the spilling of the drinks and the dropping of particles of the sandwiches. Neither did he observe the presence of the newspaper in the aisle. He testified he did not look to ascertain the possible presence of other bottles in the aisle, notwithstanding he had heard a bottle rolling on the floor and although his attention had been directed to that possibility.

There were possibly eight passengers on the bus when it arrived at the Kinder station, six of whom preceded plaintiff and a young man, Willard Griffin, in departing from the bus. The driver had left the bus and was assisting a passenger in transferring to another bus. After awaiting the other passengers leaving the bus, plaintiff turned to get her handbag on the opposite side of her seat and then as she came down from the platform on which the seats were located and which was elevated about six inches above the aisle, she stepped on an empty coke bottle underneath the newspaper lying in the aisle, which caused her foot to slip out from under her, precipitating her fall to the floor of the bus.

In reviewing the facts to determine if defendant's driver was guilty of negligence constituting a proximate cause of the accident, the trial court stated:

'An admitted fact in the case is that plaintiff's fall was caused by her act of stepping upon a bottle which was on the floor of the bus and there is no dispute about the occurrence having taken place as plaintiff claims. Further, it is conceded by defendant that there were at least three bottles on the bus prior to plaintiff's accident. The weight of the evidence is to the effect that these bottles were brought aboard by another passenger. The driver did not observe this passenger with the bottles and plaintiff and Griffin did.

'The bus driver was not aware of any bottles being on the floor until the bus had stopped at a railroad crossing near Kinder and approximately two blocks from the company's station. According to him only one bottle was brought to his attention, it being picked up from the aisle and handed to him by plaintiff. There was at least one other bottle on the floor at the time as plaintiff picked it up and put it under the driver's seat and he admitted finding it there. According to the independent witness, Mr. Griffin, he also picked up at least one other bottle and handed it to the driver. This witness also related that the driver got out of his seat but did not go toward the rear of the bus. The testimony of Mr. McClelland, the driver, is that he did nothing and said nothing after hearing the bottle roll across the floor. All that occurred was the act of plaintiff in picking up the bottle and handing it to him. He took no action himself because he assumed that it was only the one bottle. He simply put this bottle on the dash and drove on to the station, where he alighted and began to assist passengers to transfer to other coaches.'

The general rule is that a carrier of passengers should exercise a degree of care, skill and diligence for the safety of its passengers as is required by the nature and risk of the undertaking in view of the mode of conveyance and other circumstances involved. This has been held to require the 'highest degree of care, skill, and diligence', the 'highest practicable care', or 'extraordinary care and caution'. 13 C.J.S. Carriers § 678, p. 1255. While the degree of care required of a common carrier is not capable of a precise formulation, applicable to all situations that may arise, it is generally held, however, that carriers of passengers are required to exercise the highest degree of care, vigilance and precaution for the safety of those it undertakes to transport and are liable for the slightest negligence. 10 Am.Jur., p. 163, 'Carriers', § 1245. The jurisprudence of this State has consistently adhered to this general principle. Laurent Julien v. Captain and Owners of Steamer Wade...