Klovedale v. Ohio Public Service Co.

• Citation: 54 Ohio App. 244,6 N.E.2d 995
• Parties: KLOVEDALE v. OHIO PUBLIC SERVICE CO.
• Decision Date: 29 September 1936
• Court: Ohio Court of Appeals

6 N.E.2d 995

54 Ohio App. 244

KLOVEDALE v. OHIO PUBLIC SERVICE CO.

Court of Appeals of Ohio, Fifth District, Richland

September 29, 1936

Syllabus by the Court .

1. A bus company operating as a common carrier of persons cannot be held liable for injuries occurring to one crossing a busy thoroughfare with the intention of becoming a passenger on the company's busses, since there is no duty to warn those seeking transportation of the presence of ordinary street hazards which are well known and apparent.

2. The relationship of passenger and carrier in cases where busses are involved does not come into existence until the person intending to become a passenger does some physical act in respect to boarding the vehicle or that intention is communicated to the carrier's agent in charge, when the physical chance of boarding may be accomplished with safety to both contracting parties.

Lewis Brucker and H. M. Rust, both of Mansfield, for appellant.

Henkel & Gongwer, of Mansfield, for appellee.

SHERICK, Judge.

This cause comes into this court on the plaintiff's appeal on a question of law arising out of the direction of a verdict by the trial court in defendant's favor, at the conclusion of the plaintiff's case. Prior thereto, Ethel M. Gump had been dismissed as a party defendant to the action. No complaint is registered as to the court's action in this respect.

Before any statement of the issues as made by the pleading and the evidence is attempted, it seems necessary to epitomize the setting of this accident.

Lexington avenue, a busy thoroughfare, runs south from the hub of the city of Mansfield, Ohio. At a point thereon, Scholl road on the east and Davis road on the west flow into Lexington avenue. Both roads enter from the south at angles of about thirty degrees with respect to the main artery, so that the streets at this point, where they cut off south of the intersection, are like unto a three-pronged fork. Lexington avenue is a thirty-foot street, as is Scholl road. Davis road has an eighteen-foot roadway. The point made by the intersection of Lexington avenue and Scholl road is rounded off. On the evening of this accident, the appellee's bus headed south, had stopped at this point, two feet off of the Lexington avenue roadway. This was a regular stop. The bus had been standing there for two or three minutes. Its only door was at the front right end. This door had then been closed. For the immediate purpose of this action, appellant is found near a tree on the west side of Davis road, about twenty feet below its point of intersection with Lexington avenue. In some manner, not precisely disclosed by the evidence, the appellant, intending to board the bus, crossed the point of intersection made by Davis road and Lexington avenue, on Lexington avenue, and at a point some place between the center line of Lexington avenue and four feet from the bus door, was struck by defendant Gump's car, which was being driven north, with headlights lighted, and seriously injured. It is not claimed that appellee's bus was parked on the left hand side of Lexington avenue.

The appellant asserts that the bus company was negligence in the choice of its stop and in receiving and discharging passengers thereat; that it was not done at a place of safety. It is also maintained that the bus driver, after seeing her in a perilous position, made no effort to warn her, and that it was his duty to do so. The appellee denied all claims of negligence upon its part. It admitted that appellant had placed herself in the way of dangerous traffic. It charged that the direct and proximate cause of appellant's injury was her own negligence. The trial court sustained the motion for directed verdict upon two theories: First, that no negligence on the part of the bus company was the direct or proximate cause of the accident; second, that the plaintiff's evidence strongly presupposed negligence upon her part, which contributed directly to her injury.

We might hastily conclude in all propriety that the trial court was right in finding from the evidence that the appellant had voluntarily and knowingly placed herself in a position of great danger, when she might have boarded this or another bus at a point or by a way known by her to be safe, and that her known utilization of the dangerous way, as evidenced, clearly established negligence upon her part which contributed directly to her injury; but to so abruptly end the matter would be to disregard the principal questions made, respecting a bus company's duties towards one who intended to become a passenger at a regular stop, when that intention was not communicated to the bus driver. At the risk of a charge that what we shall hereinafter say is purely obiter, we propose to express the views within us on the questions so strenuously argued.

Unlike those utilities which operate on their own properties, bus companies more closely resemble street car companies, which operate upon city streets over which they exercise no control; the principal difference being found in that busses are driven over all portions of streets available for vehicles and not upon a certain fixed track. Our Supreme Court, in Cleveland R. Co. v. Crooks, 125 Ohio St 280, 181 N.E. 102, has so recognized. This was a case of one alighting in the midst of traffic, who had been carried beyond the regular stop at the curb. In view of the court's comment at page 282 of 125 Ohio St.,181 N.E. 102 103, that ‘ the safe and sane point for the stoppage of a motor bus, whether the stop be regular or irregular, is at the curb, where there can be no danger to the passenger who is alighting from vehicular traffic,’ a...