Lewis v. Pacific Greyhound Lines, Inc.

• Decision Date: 24 July 1934
• Parties: LEWIS v. PACIFIC GREYHOUND LINES, Inc.
• Court: Oregon Supreme Court

34 P.2d 616

147 Or. 588

LEWIS v. PACIFIC GREYHOUND LINES, Inc.

Supreme Court of Oregon

July 24, 1934

En Banc.

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Action by Fred Lewis against the Pacific Greyhound Lines Incorporated. From a judgment for plaintiff, defendant appeals.

Reversed.

KELLY BEAN, and CAMPBELL, JJ., dissenting.

Frank C. Howell, of Portland (Wilbur, Beckett Howell & Oppenheimer, of Portland, and W. W. McKinney, of Salem, on the brief), for appellant.

W. C Winslow, of Salem, for respondent.

BELT Justice.

The Pacific Greyhound Lines, Inc., is engaged in the operation of motorbusses as a common carrier of passengers for hire. On the evening of January 10, 1933, the plaintiff, a young man 28 years of age, purchased from the defendant company a ticket from Woodburn, Or., to Hubbard, about four miles north on the Pacific Highway. The plaintiff arrived at his destination at about 5:30 p. m. On leaving the stage he started walking in a westerly direction across the highway. Upon reaching about the center thereof he was struck by an automobile driven by the defendant Keen, traveling towards the south.

The plaintiff alleges that the defendant stage company maintains a depot and depot grounds at Hubbard immediately adjacent to the Pacific Highway, which is used for receiving and discharging passengers. The specific charges of negligence against the stage company are as follows:

"(a) That said defendant stage company carelessly and negligently stopped its stage on the paved portion of said highway and discharged plaintiff as such passenger thereon.

"(b) That said defendant stage company carelessly and negligently discharged plaintiff as such passenger upon said East side of said pavement when it was visible to the driver of said bus that other vehicles were approaching said place, including the vehicle being operated by defendant, Keen, without giving said plaintiff any warning, notice, or information as to the approach of said vehicle to said place where said defendant stage company was discharging plaintiff as such passenger and at the time it was dark.

"(c) That said defendant stage company carelessly and negligently discharged plaintiff as such passenger there and upon a highly dangerous place, to-wit, upon the paved portion of said Pacific Highway when said Pacific Highway was being used by other vehicles approaching from both directions and at a place where it was necessary for plaintiff to cross said highway in order to reach and enter defendant's said depot and his destination.

"(d) That said defendant stage company carelessly and negligently failed to carry plaintiff to his destination, to-wit, to said platform adjacent to said depot and on the west side of said highway, and failed to carry and convey said plaintiff to a safe place."

The specifications of negligence against the defendant Keen will not be set forth in view of the fact that a judgment of involuntary nonsuit was granted in his favor, from which no appeal has been taken.

The defendant company denies the charges of negligence and, as an affirmative defense, alleges in substance that it discharged the plaintiff as a passenger at a safe place, in that the bus was driven off the hard-surfaced pavement to the right; that after the plaintiff left the bus he walked to the rear thereof and proceeded to cross the highway without looking or paying any attention to the traffic and in particular to the automobile driven by defendant Keen; and that if any injuries were sustained they are the result of his own negligence and carelessness.

Plaintiff denied this affirmative defense in his reply.

On these issues, briefly stated, the cause was submitted to a jury and a verdict returned in favor of the plaintiff for $2,600. The defendant company appeals.

The motions for nonsuit and directed verdict present the vital questions: (1) Is there any evidence tending to show negligence on the part of the defendant company, and, if so, was such negligence the proximate cause of plaintiff's injuries? (2) Does the evidence show that plaintiff, in crossing the highway, was guilty of contributory negligence as a matter of law? These questions will be considered in the order stated.

Negligence is bottomed on a breach of duty. It is fundamental that, so long as the relationship of passenger and carrier existed, it was incumbent upon the defendant company to exercise the highest degree of care in promoting the safety of the plaintiff. We take it, therefore, that it was the duty of the defendant to discharge plaintiff as a passenger at a place of safety. It would not be fulfilling its obligations to discharge him at a place where he would be subjected to unusual danger from vehicular traffic; but it is equally well settled that, after having afforded a reasonable opportunity to alight in safety, the carrier is not liable for injuries resulting from intervening causes.

In consideration of the liability of the defendant company, we need not be concerned with railroad or street car cases where passengers have been injured. The automobile bus operating as a common carrier of passengers for hire is subject to rules of law not applicable to other carriers. It does not necessarily follow, therefore, that what might constitute negligence in the discharge of a passenger by a railroad company or a street car company would be a breach of duty in the instant case. A railroad company ordinarily owns its right of way and has exclusive control over its station and grounds where passengers are received or discharged. In such cases the relation of passenger and carrier continues after the passenger has alighted from the train and while he remains for a reasonable length of time in the station of the carrier. 4 R. C. L. 1045, citing numerous authorities in support of the text. A different rule applies to street car company carriers, since ordinarily they do not maintain stations but discharge or receive passengers on the streets. Unlike the auto bus, the street car runs upon fixed tracks and must stop on such tracks. Under ordinary circumstances, when a passenger is discharged safely upon the street the liability of such carrier for injuries ceases. An automobile bus is able to move or stop in the street at the will of the driver. Ordinarily stations are not maintained by such carriers. The safety of the place afforded the passenger for alighting is entirely within the control of the driver, and passengers are discharged to suit their convenience. The degree of care to be exercised must be commensurate with the danger involved. To discharge a passenger on a highway where he would be subject to the dangers of vehicular traffic would clearly not meet the degree of care which the law exacts. As stated in Roden v. Connecticut Company, 113 Conn. 408, 155 A. 721, 722: "The duty of a common carrier of passengers includes an obligation to furnish them a safe place in which to alight, as far as that place is provided by it or is affected or conditioned by the movement of the vehicle, and that duty is only satisfied if it exercises the highest degree of care and skill which reasonably may be expected of intelligent and prudent persons engaged in such a business, in view of the instrumentalities employed and the dangers naturally to be apprehended."

In the instant case the evidence discloses without contradiction that the plaintiff was not injured while engaged in alighting from the bus. It also appears without conflict that he was discharged as a passenger on the right side of the bus. He went out the front door onto the gravel shoulder of the pavement. The left wheels of the bus were only a foot or two on the east side of the pavement. After having thus alighted in safety, did the relationship of carrier and passenger continue while he walked 35 feet to the rear of the bus and half way across the pavement, which was 16 feet wide? We think not. Unquestionably the plaintiff walked from a place of safety into a place of danger. Cases where passengers were injured while engaged in the act of alighting or where they have been discharged onto the pavement thereby being subjected to the dangers of traffic are not in point. No case has been cited, based upon a similar state of fact, where liability has been sustained. To hold otherwise would make the carrier in insurer.

We are not unmindful that the bus company usually discharged passengers on the fill in front of the restaurant on the west side of the pavement. In this restaurant the company maintained an agency for the sale of tickers on commission. On the front of the barbecue stand or restaurant was a sign, "Pacific Greyhound Lines Depot." The bus company, however, had no control over the ground between the restaurant and the highway. It was used by the public generally. The defendant company excused its failure to drive in front of the restaurant on the ground that there were cars parked on the fill and that loose gravel was piled on the shoulders of the west side of the pavement. It is believed, however, that there is evidence tending to show that the bus could have been driven over onto the fill had the driver desired to do so. We attach no particular significance to these facts in determining whether the relationship of passenger and carrier had terminated at time of injury.

Waldron v. Southwestern Bus Co., 42 Ohio App. 549, 182 N.E. 596, is based upon a similar state of facts, and strongly supports the contention of the defendant appellant. In that case the bus had a regular stopping place just before crossing an intersecting road but, on the day in question, failed to stop at the usual place and continued until it had crossed the intersecting road. The driver thereupon opened the bus door...