Kramer v. Sioux Transit, Inc., 10625

• Decision Date: 21 October 1970
• Docket Number: No. 10625,10625
• Citation: 85 S.D. 232,180 N.W.2d 468
• Parties: Arthur E. KRAMER, as Administrator of the Estate of Hulda J. Kramer, Deceased, Plaintiff and Appellant, v. SIOUX TRANSIT, INC., Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 468

180 N.W.2d 468

85 S.D. 232

Arthur E. KRAMER, as Administrator of the Estate of Hulda J Kramer, Deceased, Plaintiff and Appellant, v. SIOUX TRANSIT, INC., Defendant and Respondent.

No. 10625.

Supreme Court of South Dakota.

Oct. 21, 1970.

Rehearing Denied Dec. 15, 1970.

Lacey & Lacey and Edwin C. Parliman, Sioux Falls, for plaintiff and appellant.

Davenport, Evans, Hurwitz & Smith, and Carleton R. Hoy, Sioux Falls, for defendant and respondent.

ROBERTS, Presiding Judge.

Plaintiff is the administrator of the estate of his deceased mother, Hulda J. Kramer. Plaintiff sought damages for death by wrongful act and for the pain and suffering of decedent and also medical and burial expenses.

The complaint alleges that decedent was a passenger for hire on a bus operated by the defendant Sioux Transit, Inc., as a common carrier of passengers; that at the intersection of East Sixth Street and Sherman Avenue in the City of Sioux Falls, the driver negligently operated the bus causing Mrs. Kramer to be thrown to the pavement with great force as she was alighting from the bus; and that she died as a result of injuries sustained. Defendant specifically denied any negligence on its part which proximately caused or contributed to the fall of plaintiff's intestate. Defendant sought to avoid claim that contributory negligence as a defense imports negligence on the part of the defendant. A jury trial resulted in verdicts for the defendant. Plaintiff appeals.

Plaintiff contends (1) that the evidence established negligence on the part of the driver as a matter of law and since there was no issue of contributory negligence or assumption of risk the evidence does not support verdicts for the defendant; (2) that the court erred in refusing to instruct the jury that defendant was required 'to provide everything necessary' for the safe carriage of decedent; (3) that the court erred in its refusal to admit in evidence a written statement of a witness made to the police after the accident containing recitals contradictory to her testimony; (4) that there was error in refusal of the court to permit a pathologist, witness for the plaintiff, to give his opinion as to what caused the injuries discovered upon an autopsy and to answer hypothetical questions; and (5) that the court erred in refusing to give instructions requested by plaintiff relating to the doctrine of res ipsa loquitur.

On June 13, 1966, at about 1:30 p.m. decedent was a passenger on a bus traveling east on Sixth Street approaching the Sherman Avenue intersection. She gave the usual signal that she wished to alight at the next corner and the driver pulled over toward the curb on the south side of the street. The driver of the bus gave the following account of the manner in which the decedent got off the bus: 'Well, the buzzer sounded, there was a short notice, and I pulled towards the curb which I as a rule get right up to the curb, but this particular time I didn't and I stopped and opened the doors and Mrs. Kramer slowly got off, which I waited for her as she stepped up on the curb, and when I was about ready to go the doors were open, I just released the brakes and somebody said 'wait' and I set the brakes again, the bus did not move, and I looked over towards her and she was reaching for something and at that time she started falling over backwards.'

The only other passenger on the bus was Mrs. Rachel Stratton, who was sitting directly behind the driver with her back to the windows on the north side. She testified that she saw Mrs. Kramer leave the bus; that the bus driver put the motor in gear, and that she heard someone call 'wait' and the driver stopped the bus immediately. 'Q. What did the bus do, did the bus stop? A. Certainly. I don't know how it could have stopped so fast. Q. In other words it stopped suddenly? A. Yes.' Counsel for plaintiff, claiming that some of the testimony of this witness was contrary to statements made previously by her to the police, was permitted to ask leading questions and to cross-examine. The court rejected offer of the statement in evidence.

Anthony Wenbourne, then thirteen years of age, was at his grandmother's house on the south side of Sixth Street about a quarter of a block west of the described intersection working with his father putting in forms for new steps and saw the accident. We quote from his direct examination as follows: 'Q. Did you see the bus stop at the intersection? A. Yes. Q. Did you see a lady get out? A. Yes. Q. Tony, in your own words tell us what you noticed at that time and place * * * I was waiting for my grandmother to come home * * * a lady stepped down off of the bus onto the pavement, turned around, and then she fell * * * Q. Did you notice whether the bus started to leave the crosswalk where it stopped? A. It didn't start to leave. Q. You say what? A It did not start to leave * * * Q. How far was the bus from the curb? A. About a foot. Q. About a foot? A. Yes. Q. That is, from the bottom step you would say it was about a foot over to the curb? A. Yes.'

On cross-examination he testified: 'Q. Then I believe you told Mr. Lacey and the jury in response to his question, that after she tried to turn around or something then is when she fell. A. Yes. Q. I believe that when he asked you if the bus had started to move, then you answered that it hadn't. A. Yes.'

The testimony of James Wenbourne was substantially the same as that of his son. He testified that he saw Mrs. Kramer fall and the bus was not moving at that time.

There is some conflict in the evidence as to what happened. It is within the province of the jury to weigh the evidence and determine the facts and we cannot say that their verdicts are not without support in the record.

Plaintiff complains that the court committed prejudicial error in its instructions concerning the duty of care that a common carrier must exercise for the protection of a passenger. The instruction included language of the statute (SDCL 49--4--4) requiring a common carrier of persons for reward to 'use the utmost care and diligence and a reasonable degree of skill'. It is care commensurate with the risk involved. Annot. 9 A.L.R.2d 938. Plaintiff complained of the omission of the words of the statute requiring the carrier to 'provide everything necessary for their safe carriage.' It is not claimed that a common carrier is an insurer of the safety of its passengers. It is not suggested by counsel for appellant what degree of care could be greater than 'utmost care and diligence and a reasonable degree of skill.' The language 'provide everything necessary for their safe carriage' concerns the vehicle itself and not its operation. No prejudicial error resulted in refusing to include such language in the instruction. See Henrichs v. Inter City Bus Lines, 79 S.D....