Louisville Ry. Co. v. Allen

• Decision Date: 21 December 1951
• Citation: 246 S.W.2d 443
• Parties: LOUISVILLE RY. CO. v. ALLEN.
• Court: United States State Supreme Court — District of Kentucky

Page 443

246 S.W.2d 443

LOUISVILLE RY. CO. v. ALLEN.

Court of Appeals of Kentucky.

Dec. 21, 1951.

Rehearing Denied March 14, 1952.

Bullitt, Dawson & Tarrant, Earl S. Wilson and Gerald Kirven, all of Louisville, for appellant.

Julius Leibson, Louisville, for appellee.

CAMMACK, Chief Justice.

Emma Allen instituted this action against the Louisville Railway Company to recover for personal injuries allegedly sustained by her through the negligent operation of one of the Railway Company's busses. The trial court gave a peremptory instruction in favor of Emma Allen at the conclusion of all the evidence. The jury awarded damages in the amount of $4,173. The Railway Company is appealing from a judgment in that amount.

As grounds for reversal, the appellant contends that (1) the trial court should have directed a verdict for and not against it, because there was no proof of negligence on the part of the bus operator and because the appellee was contributorily negligent as a matter of law; (2) if it was not entitled to a peremptory instruction, the issues of negligence and contributory negligence should have been submitted to the jury; (3) incompetent evidence was admitted over its objection; and (4) the verdict is excessive.

According to the testimony of the appellee, she, accompanied by her niece, one year and ten months old, and her nephew, two years and ten months old, was a passenger on a westbound Oak Street bus of the appellant on the morning of May 9, 1949. On a signal from one of the passengers, the bus stopped at the corner of Thirty-fourth Street and Greenwood Avenue. The appellee, with the children, went to the rear door, intending to alight from the bus. (This exit door is commonly referred to as the rear door, whereas its location is actually about three-fourths of the way back on the right side of the bus.) Several passengers preceded the appellee through the door. After instructing her nephew to stand on the floor of the bus, the appellee carried her niece off the bus and placed her on the curb. The appellee then placed one foot on the bottom step of this exit way and reached back through the doors to help her nephew alight. She 'got hold of his arm' as he started down the steps, whereupon the folding doors closed on her arm and the bus started forward, dragging her a short distance along the street and causing various injuries to her arm, shoulder and other parts of her body.

Clarence Roos, the bus operator, testified that he opened both doors at the bus stop to allow a passenger to board the bus by the front door and some passengers to get off at the rear door. He then looked into the rear view mirror and 'noticed that both doors were clear.' He also looked for but did not 'notice' and passengers preparing to alight at the rear door, nor did he see the boy standing inside the bus near the door, though he had seen the appellee take a child off the bus. After looking back (via the mirror system, by which the driver is able to see the exit door and steps) to see if the doors were clear, he turned his head to the left and pulled the lever by which the doors are operated, but did not start the bus forward. While pulling the lever with his head turned, he was unable to see what was 'going on' behind him in the bus. He stated that he had not seen the woman's arm through the doorway when the closed the doors and that the first he knew of the accident was when 'someone hollered' and a woman came to the front of the bus, claiming her arm had been caught in the doors.

The testimony of disinterested witnesses clearly establishes that the boy was standing in the aisle at or near the head of the exit steps, notwithstanding the testimony of the bus operator that he 'didn't notice' him standing there. We think the evidence also establishes that the appellee's arm was in the doorway at the instant the doors were closed. But it does not follow necessarily that these factors entitled the appellee to a directed verdict. The duty owed to a passenger by a common carrier is 'to exercise the highest degree of care, skill and diligence for the safety of the passenger as is required by the nature and risk of the undertaking, in view of the mode of conveyance and other circumstances involved, which may vary according to the immediate activity, instrumentality, time or place.' Southeastern Greyound Lines v. Woods, 298 Ky. 773, 184 S.W.2d 93, 95. The highest degree of care is that degree of care which prudent and skillful persons engaged in the same business usually observe under similar circumstances. Ken-Ten Coach Lines, Inc. v. Siler, 303 Ky. 263, 197 S.W.2d 406.

The appellant contends that the appellee, when injured, was no longer a passenger and hence the appellant owed a duty to exercise only ordinary care for her safety; that is, the same duty it owes to any other pedestrian. The rule in many jurisdictions is that under ordinary circumstances the passenger-carrier relationship terminates when the alighting passenger gains a secure and maintainable foothold upon the street. 10 Am.Jur., Carriers, Sec. 1008, p. 54. In Kentucky it has been held that the relationship ends when the passenger has alighted in a place of safety, Trout's Adm'r v. Ohio Valley Electric Ry. Co., 241 Ky. 144, 43 S.W.2d 507; or has had a reasonable opportunity to reach a place of safety, Louisville Ry. Co. v. Kennedy, 162 Ky. 560, 172 S.W. 970.

However, we are of the opinion that these statements of the law are not applicable here, even though the appellee had safely alighted, because there remained on the bus a small child who at the time was in appellee's care and custody and who required her assistance in leaving the bus. In view of the facts peculiar to this...