Leach v. School Dist. No. 322 of Thurston County

• Decision Date: 23 December 1938
• Docket Number: 27100.
• Citation: 85 P.2d 666,197 Wash. 384
• Parties: LEACH v. SCHOOL DIST. NO. 322 OF THURSTON COUNTY.
• Court: Washington Supreme Court

85 P.2d 666

197 Wash. 384

LEACH v. SCHOOL DIST. NO. 322 OF THURSTON COUNTY.

No. 27100.

Supreme Court of Washington, En Banc.

December 23, 1938

Action by Chester Leach, by his guardian ad litem, Julia Leach against School District No. 322 of Thurston County Washington, to recover damages for injuries. From a judgment dismissing the action with prejudice, the plaintiff appeals.

Affirmed.

BLAKE MAIN, and MILLARD, JJ., dissenting.

Appeal from Superior Court, Thurston County; D. F. Wright, judge.

J. O Davies, of Centralia, for appellant.

Robert E. Evans and John P. O'Connor, both of Tacoma, and Smith Troy, of Olympia, for respondent.

HOLCOMB Justice.

The trial court entered an order sustaining a demurrer to the amended complaint, and a judgment dismissing the action with prejudice, from which judgment this appeal is taken.

Appellant brought this action through his guardian ad litem, Julia Leach, and alleged that he is thirteen years of age and a regular pupil at a grade school of respondent district; that the latter maintained and operated a 1930 model Ford school bus for the transportation of pupils to and from the school and their homes; that the bus was constructed with two folding doors in the right front end for the entry and departure of pupils; that through the negligence of respondent each of the front doors had a pane of glass, approximately a foot from the bottom of each door, 12 x 15 inches in size, neither of which was made of 'plate glass, safety glass, or shatter-proof glass,' and that each of these kinds of glass was well known and easily obtainable in the open market, and had been in common use in school busses and motor vehicles for several years prior to March 10, 1937, and the injuries referred to hereinafter would not have been sustained but for the absence of the above-mentioned types of glass.

Appellant alleged further that March 10, 1937, at about 3:30 P. M., the bus was driven in front of the schoolhouse for the purpose of transporting pupils to their homes; that at the time the bus appeared, appellant and a large number of other pupils were standing in front of the schoolhouse waiting for it at the usual and customary place where the school bus stopped to pick up the children at the school in question; that when the bus stopped one or more of the pupils jostled appellant, thereby causing him to lose his balance, and to fall toward the front doors of the bus; and that in attempting to protect himself appellant put forward his hands which came in contact with the panes of glass on each of the front doors, the panes of which broke, thereby cutting and lacerating his hands and wrists, and resulting in injuries of a temporary character to the right hand and permanent injuries to the left hand.

Appellant assigns as error the sustaining of the demurrer and the entry of the judgment of dismissal.

It will be admitted that a bus for conveying children to and from school acts as a carrier, and it is incumbent upon the school district to exercise towards its passengers the highest degree of care consistent with the practical operation of the conveyance. Phillips v. Hardgrove, 161 Wash. 121, 296 P. 559.

It is also recognized that a carrier, in entering a crowd either preparatory to loading passengers or discharging them, must act to guard against perilous situations which frequently arise or which it could reasonably anticipate. Savickas v. Boston Elevated Ry. Co., 239 Mass. 226, 132 N.E. 29.

It is equally well settled that a carrier is not required to take precautionary measures against the occurrence of accidents which it could not reasonably foresee. Chesapeake & O. Ry. Co. v. Hibbs, 142 Va. 96, 128 S.E. 538, 41 A.L.R. 1083; Maillefert v. Interborough Rapid Transit Co., 50 Misc. 160, 98 N.Y.S. 207; Jackson v. Boston Elevated Ry. Co., 217 Mass. 515, 105 N.E. 379, 51 L.R.A.,N.S., 1152; Marr v. Boston & M. R. R., 208 Mass. 446, 94 N.E. 692; Glyn v. New York & H. R. Co., 85 Hun 408, 32 N.Y.S. 1021.

The amended complaint does not contain any allegation either to the effect that any such accident had ever occurred Before , or that respondent reasonably could have foreseen that the accident, with its resulting injuries, would occur. The pleadings are also barren both of any allegation with respect to negligence on the part of respondent by reason of the absence of regulations to protect passengers or prospective passengers from injury, and of any averment that respondent was derelict in the discharge of its duties as a carrier in regulating the jostling and pushing by the pupils waiting to enter the bus.

Assuming, without deciding, that appellant was a passenger at the time he sustained his injuries, it is necessary to ascertain if the situation which gave rise to the injuries is one which was reasonably foreseeable and anticipatable so as to require precautions to be taken, that is, the installation of plate glass, safety glass, or shatter-proof glass.

Appellant stresses the fact that chapter 189, p. 865, § 40, Laws of 1937, Rem.Rev.Stat. § 6360-40, provides it shall be unlawful on and after January 1, 1938, to operate upon any public highway of this state any motor vehicle which is registered in this state and which shall have been manufactured or assembled on or after January 1, 1938, unless such motor vehicle be equipped with safety glass wherever glass is used in partitions, doors, windows and windshields. That statute did not become effective until April 1, 1937, and the accident having occurred March 10, 1937, it cannot be said to have any application to the present proceeding.

Appellant also insists that respondent was under a duty to equip its busses with the latest inventions and devices known to art and science to render them safe for passengers.

'A carrier, however, is not required to adopt and use every new and untried machine or appliance, or the best in use, but which is not in general use; * * *' (Italics ours) 10 C.J. 956, § 1374.

In Adduci v. Boston Elevated Ry. Co., 215 Mass. 336, 102 N.E. 315, 45 L.R.A., N.S., 969, the court said [page 316]: 'While a common carrier is bound to exercise a high degree of care and diligence in the selection, maintenance, inspection and use of its cars and their appliances, it is not required to provide immediately and regardless of expense every new equipment that human skill and ingenuity devises to prevent accidents. It is bound to adopt approved appliances that are in general use and necessary for the safety of passengers, but it is not obliged to discard those that always have been found to be adequate and safe merely because they may be a source of possible danger to a passenger. * * *'

While a carrier of passengers in obligated to adopt new inventions, and to keep pace with new developments in science within reasonable limits, we are not prepared to say that shatter-proof or safety glass was so widely in use under the conditions involved here at the time appellant's injuries were sustained, or that a peril was occasioned by the absence thereof sufficient in character to require its presence, and that the failure to equip the busses with this new device in and of itself constituted negligence. The mere fact that Rem.Rev.Stat. § 6360-40, was enacted and became effective a short time after appellant sustained his injuries does not in any wise establish that safety or shatter-proof glass were in general use.

In Madden v. New York Cent. & H. R. R. Co., 98 A.D 406, 90 N.Y.S. 261, the carrier was held not to be liable for injuries sustained by a passenger who was crowded by other passengers so that his hand was forced through a glass in the upper part of a car door. Notwithstanding the fact that this case was decided in 1904, we think the observation of the court is pertinent. The court stated [page 262]: 'We think the evidence fails to establish the negligence of the defendant. For aught that appears, there were ample...