Mikes v. Baumgartner
| Decision Date | 18 August 1967 |
| Docket Number | No. 40377,40377 |
| Citation | 277 Minn. 423,152 N.W.2d 732 |
| Parties | Sarah Jo MIKES, a minor by James Mikes, her father and natural guardian, and James Mikes, Respondents, v. Ann BAUMGARTNER et al., Respondents, Sheldon Hultgren, and L. H. Dickey, dba Dickey Bus Service, Appellants. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Where pursuant to the statutes of this state the State Board of Education has adopted regulations for the operation of school buses intended for the protection of school children, such regulations have the force and effect of law and the violation thereof constitutes prima facie evidence of negligence.
2. Where on account of the violation of the regulations for the operation of school buses children are discharged and placed in a position of danger, the negligence of the driver of an approaching automobile which runs into and injures such children does not constitute a superseding and intervening cause for the reason that the duty to protect the children until they are in a place of safety is a continuing one that cannot be broken by the negligence of another tortfeasor.
3. Regulations adopted for the protection of children riding in buses may be submitted to the jury as indications of the duty required of the bus driver.
4. Where a case is submitted to the jury on a special verdict it is better practice to submit the issue of negligence and proximate or direct cause in separate questions; but where, as here, the negligence, if any, of the operator of a school bus and an approaching automobile are clearly proximate causes, reversible error does not exist for having submitted the two issues in one question.
Davis & Strauman, and John Lindstrom, Willmar, Winter, Lundquist & Sherwood, and Donald B. Pedersen, Wheaton, for appellants.
Johnson, Schmidt & Thompson, Willmar, for Mikes.
Quinlivan, Quinlivan & Williams, St. Cloud, O. C. Adamson, II, Minneapolis, of counsel, for Baumgartner et al.
This case arises out of an injury sustained by Sarah Jo Mikes, a 14-year-old freshman, shortly after she alighted from a school bus on her way home. The school bus was owned by defendant L. H. Dickey, doing business as Dickey Bus Service, and driven by defendant Sheldon Hultgren, who had been so occupied for a period of only 5 days after receiving his chauffeur's license authorizing him to drive a school bus.
The bus left Willmar High School at approximately 4 p.m. on a clear day and proceeded south on Highway No. 71. Preceding it was another school bus from Blomkest Grade School. As the two buses proceeded south they approached an intersecting county road, at which point the Blomkest bus turned right, that is, to the west, and the bus on which Sarah Jo was riding came to a stop a few feet north of the intersection with its right front wheel off the pavement and its left front wheel and both rear wheels on the pavement. It was the intention of the driver of this bus also to turn west on the county road when he had discharged Sarah Jo and her sister. The evidence is somewhat conflicting as to when the driver of the latter bus extended the stop sign which all buses must carry and activated the red flashing lights. The stop sign is extended from the bus by a handle within the bus and when that is done the handle presses a button which activates the red flashing lights. However, the evidence is quite convincing that the stop sign and the lights were activated before Hultgren opened the bus door to permit Sarah Jo and her sister to leave, and for the purposes of this decision we assume that to be a fact. In any event, the door was opened and Sarah Jo and her sister alighted and walked in front of the bus. Defendant Ann Baumgartner was at that time approaching from the south in an automobile owned by defendant Roger D. Baumgartner. Traveling with her was a passenger, Mrs. Karen Soltis. Mrs. Baumgartner testified that she first noticed the bus when she was three or four city blocks from the intersection. She was at that time traveling 60 to 65 miles per hour. She noticed the Blomkest bus had turned the corner and was proceeding west and she saw one of the two girls leave the second bus. She stated that she was then about two blocks away and she slammed on her brakes hard and felt the car go out of control. She let up on the brake pedal to gain control of the car and stepped on it when she was a few feet south of the intersection, but again began to lose control of the car and again let up on the brake pedal; and when she was about in the middle of the intersection she pressed on the brake a third time and the rear end of the car 'fishtailed' in a clockwise direction, the rear end crossing the centerline and striking Sarah Jo, who was standing in front of the bus, throwing her into the front end of the bus. Mrs. Baumgartner's car landed in the east ditch and there was some dispute in the testimony as to whether it was facing southeast or southwest, but that is immaterial.
While the distance of the Baumgartner car from the bus when Sarah Jo and her sister emerged cannot be established with exactness from the estimates given by the witnesses, there is no dispute that Mrs. Baumgartner was so close that, traveling at the speed she admits she was going, she was unable to stop within the distance that separated the two. Skid marks were left on the highway for about 180 feet. No one disputes the fact that Mrs. Baumgartner was negligent and that her negligence was a proximate cause of the accident.
The jury returned a verdict against all defendants. The trial court denied a motion for a new trial on the issue of liability, but granted a motion for a new trial on the issue of damages on the ground that the amount returned by the jury was excessive. The owner of the school bus and the driver appealed. Mrs. Baumgartner and her husband have not appealed. While the school bus owner and driver claim that the driver, Hultgren, was guilty of no negligence, the main thrust of the appeal is that, even if he were, the extreme negligence of Mrs. Baumgartner was a superseding intervening cause insulating the negligence of Hultgren, whatever it was. There are also some contentions that the court erred in its instructions to the jury, which will be discussed hereinafter.
1. Statutes of this state relating to the transportation of school children on buses provide a measure of control of approaching traffic by the operator of the bus, and require all school buses to be equipped with a stop signal arm and flashing red signals to be activated by the driver under most conditions where he permits children to leave the bus or stops to pick them up. Minn.St. 169.44, subd. 2, provides, among other things:
'Where school children must cross the road before boarding or after being discharged from the bus, the driver of a school bus or a school bus patrol May supervise such crossings making use of the standard school patrol flag or signal as approved and prescribed by the commissioner of highways.' (Italics supplied.)
Section 169.45 provides:
(Italics supplied.)
Pursuant to this statutory mandate the State Board of Education has adopted certain regulations regarding the operation of school buses. Regulation 240 provides in part:
'(2) The driver shall:
'(aa) Bring the vehicle to a complete stop on the right side of the road, parallel to the center line.
'(bb) Extend the stop-order signal arm.
'(cc) Open door to discharge pupils only after all traffic from the front or rear has come to a complete stop.
'(dd) Continue to keep the stop-order signal arm extended until all the pupils have been loaded or unloaded safely or have crossed the road safely.
'(3) The driver shall be responsible for safely delivering the pupils who must cross the highway to the left side of the road by one of the following methods:
'(aa) The pupils shall pass around IN FRONT OF the vehicle and cross the road only upon receiving word from the driver, or
'(bb) The pupils shall pass around IN FRONT OF the bus and be conducted across the road by the school bus patrol, or
'(cc)...
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