McBroom v. S.E. Greyhound Lines

• Decision Date: 28 June 1945
• Parties: McBROOM et al. v. S. E. GREYHOUND LINES et al.
• Court: Tennessee Court of Appeals

193 S.W.2d 92

29 Tenn.App. 13

McBROOM et al. v. S. E. GREYHOUND LINES et al.

Court of Appeals of Tennessee, Eastern Section.

June 28, 1945

Certiorari Denied by Supreme Court December 8, 1945.

Appeal in Error from Circuit Court, Hamilton County; Fred B Ballard, Judge.

Action by Grace M. McBroom and her husband against S.E. Greyhound Lines and another. From an order of trial judge granting peremptory instructions in defendants' favor at the close of plaintiff's proof, plaintiffs appeal in error.

Reversed and remanded.

Charles A. Noone and Wood & Dietzen, all of Chattanooga, for plaintiffs in error.

C. G Milligon and Charles D. Goins, both of Chattanooga, and Hodges & Doughty, of Knoxville, for defendants in error.

HALE Judge.

The plaintiffs below prosecute this appeal from the action of the trial judge in granting peremptory instructions at the close of their proof.

Mrs McBroom's suit was based on personal injuries she sustained, while that of her husband was for loss of services, medical bills, etc.

The Southeastern Greyhound Lines is a common carrier of passengers. The defendants Kirk own and operate the Peggy Ann Cafe at Rockwood, Tenn. This is a regular 'Rest Stop' for the Greyhound Lines and is so advertised as shown by Exhibit 'B' to Scott McBroom's testimony. It seems that this arrangement is mutually satisfactory to the carrier and cafe owners. The carrier is benefited by the rest room and toilet facilities afforded their passengers, who also might purchase refreshments, food, etc. It is a fair inference that such facilities are essential to the proper operation of a motor carrier of passengers. The Peggy Ann Cafe profited by the patronage of the passengers. It is shown that their place of business is about a mile south of Rockwood and we think it a fair inference that a considerable part of their patronage is derived from bus passengers.

Mrs. McBroom's claim is based on this allegation:

'On or about the 22nd day of November, 1943, the plaintiff herein boarded one of the buses operated by the defendant corporation at Cincinnati, Ohio and became a regular passenger for hire for the purpose of traveling to Chattanooga, Tennessee by way of Lexington, Kentucky and Rockwood, Tennessee. In the evening of said day, the bus on which plaintiff was riding reached the town of Rockwood, Tennessee, and as was customary, the operator of the said bus drove same to the Peggy Ann Hotel Cafe, and stopped announcing that there would be a layover there for sometime, ordering the passengers to leave the bus, suggesting that they avail themselves to the aforementioned services therein furnished. Thereupon, this plaintiff and all other passengers alighted from the bus at which time the lights on same were extinguished and the doors shut. The plaintiff went to the rest room on these premises, but returned shortly thereafter to the vicinity where the bus was parked for the purpose of getting on same. That portion of the premises where the bus was standing was very dark: there being almost an entire absence of light. In attempting to make her way back to the bus from the inside of the building, and due to the darkened condition there existing, plaintiff was unable to, and did not see, a projection that extended of uneven width out from the lines of the walkway in front of the door to the cafe, and as she started to step down at a point where she thought, and had a right to believe, that there was a step-off, she caught her foot on the edge of the projection and fell to the hard driveway, striking same with great force and violence. * * *

'Plaintiff avers and charges that she was a paid passenger on said bus, and both while she was actually riding thereon and while she was on the aforesaid premises at the instance and direction of the defendant corporation, its agents and servants, she was entitled to expect, and the corporation was required to exercise the highest degree of care for her own safety and welfare. Nevertheless, and entirely unmindful of its duty on its part, said defendant corporation, through its agents and servants, negligently directed and ordered the plaintiff to get off of the bus upon these premises at a time and place when same was in a negligent and hazardous condition. By reason of the darkened condition of the premises and the dangerous and defective condition of the walkway above referred to, said defendant, could and should have known, by the exercise of the high degree of care which they owed plaintiff; that this defendant was further negligent in not causing the plaintiff to be warned of said negligent condition and in cutting off all the lights after she had alighted, thus adding to the darkened condition of the premises, and said defendant corporation, its agents and servants were further negligent in failing to furnish the plaintiff a means or method of egress and ingress from the said bus that was in a safe condition, free from the hazard of poor illumination, defective lighting and negligent construction of the step-off above referred to.

'The defendants Kirk, and each of them, being engaged in the business of operating a public restaurant and accompanying rest rooms for the general public and especially for the passengers arriving on buses operated by the defendant corporation, owed this plaintiff the duty to exercise care and prudence for her safety and welfare, but entirely unmindful of this duty, they were guilty of negligence, in that they were operating and maintaining said premises in a defective and dangerous condition when they knew, or by the exercise of due care, could and should have known that the lighting in the area where the bus was parked was inadequate, especially in the area of the driveway and the walkway adjoining, and they were further negligent in maintaining the premises in a poorly lighted condition and with the irregular and protruding walkway in front of the door above referred to and at a place due to the darkened condition said defects could not be observed by the public or this plaintiff.

Plaintiff avers and charges that the independent acts of negligence on the part of the agents and servants of the defendant corporation, combined and concurred with the negligent acts of the defendants Kirk, their agents and servants; thereby producing and causing the accident above referred to and her resulting injuries and that said negligent acts so combined and so concurring were the direct and proximate cause of said accident and her resulting injuries.'

This cafe building is on the west side of the highway. It is about 28 feet in width, and has a front of it a walk 4 feet wide, which is 8"' above the driveway. On the night in question this walk was partially obstructed with benches and scales. In front of the building and covering both the walk and drive is a marquee. The principal entrance to the cafe seems to have been a door about the center of the building. Immediately in front of this door there had been added to the walk what we, for the lack of a better name, will call a 'buffer' composed of concrete and semi-circular in form, and the same height of the walk. This is well shown in Exhibit 'A' to Scott McBroom, which indicates that it was not of the same color as the walk. It may have been painted. This projection was about 12 or 14 inches at its broadest point. It was built to keep busses from striking an overhead fan immediately above the door.

Mrs McBroom became a passenger of this carrier at Cincinnati. She changed at Lexington, Ky., and from there to Rockwood had been out of the bus only once. It was at night. She was wholly unfamiliar with this situation at the Peggy Ann Cafe. She and the other passengers were ordered off the bus. The bus was parked at an angle but sufficiently close to the walk as to allow her to step from the bus to the walk. She then proceeded northwardly up the walk to the main entrance, went in and entered the lavatory, came back out and purchased a cup of coffee and a sandwich and then went back outside. The lights were off of the bus, the venetian blinds on the door and windows of the cafe were down, and at the north and south ends of the marquee there were three or four small 25 watt lights...