Marion County v. Cantrell

• Citation: 61 S.W.2d 477,166 Tenn. 358
• Parties: MARION COUNTY et al. v. CANTRELL.
• Decision Date: 24 July 1933
• Court: Tennessee Supreme Court

61 S.W.2d 477

166 Tenn. 358

MARION COUNTY et al. v. CANTRELL.

Supreme Court of Tennessee.

July 24, 1933

Appeal from Circuit Court, Marion County; L. R. Darr, Judge.

Suit by Robert Cantrell, administrator, against Marion County and another. To review an order of the Court of Appeals reversing judgment for plaintiff and dismissing suit, plaintiff brings error.

Reversed and remanded.

Kelly & Kelly, of Knoxville, for plaintiff in error.

Lynch Bachman, Phillips & Lynch, of Chattanooga, and A. R. Hall, of Jasper, for defendants in error.

GREEN Chief Justice.

This suit as finally submitted to the court below was against Marion county and one Hudson by Robert Cantrell as administrator to recover for the death of his minor child who was killed by falling or jumping from a school bus operated by Marion county, or the school board of that county, and driven by Hudson. There was a verdict for $12,500, reduced to $10,000 by the trial court. The Court of Appeals reversed the judgment below and dismissed the suit.

The bus was arranged with four seats therein placed lengthwise, two along each side of the bus and two seats in the middle backing up to each other and facing the seats along the sides. There was one door in front of the bus on the right-hand side with a step leading down to the ground. There was another door in the center of the back of the bus, known as the emergency door. The Court of Appeals found that the floor of the bus was about twenty-one inches from the ground although there is proof indicating that it was higher. There was no step leading from the emergency door to the ground.

The Cantrell boy lived several miles from the school he was attending. The school had been opened and he had been riding the bus for about a week. He usually got on the bus, with some other children, in the morning, at a point a short distance from the intersection of the lane leading to his house with the highway. He usually left the bus at the intersection of the lane and the highway. He was killed on his return from school.

No one saw the actual exit of the boy from the bus. The bus did not stop at the lane where he usually alighted. He either jumped or fell from the emergency door as the bus was passing the lane. It is argued by counsel for the administrator that the child fell from the bus. It is argued by counsel for the plaintiffs in error that he jumped from the bus. There is much proof that the emergency door was open as the bus passed this lane and much proof that it was left open a large part of the time during that particular journey and during other trips. All the proof shows that the emergency door was easily opened and could be opened by any child riding the bus.

The circuit judge told the jury repeatedly that there could be no recovery if the boy jumped from the bus. In reaching a verdict for the plaintiff, therefore, the jury must have found that the boy fell from the bus. There is nothing in the record to support an inference that he was thrown from the bus by anybody, although that is alleged as a possibility in the declaration.

The Court of Appeals said that it was impossible to decide whether the boy fell from the bus or jumped from the bus, and that a verdict based on the theory that he fell from the bus rested on a mere surmise, was conjectural, and that the suit must accordingly be dismissed. We agree that any conclusion that the boy fell from the bus, rather than jumped from the bus, on this record, is purely speculative. We do not agree however, that the manner of his exit from the bus is determinative of this suit as a matter of law.

The declaration as amended averred that no lock was provided for the emergency door and that the door could be opened at will by any of those riding the bus and that the rear door, put in for emergency use, was constantly left open and was open at the time of the accident.

It seems to us that the operation of a bus, for the transportation of young children, with a...