Montgomery City Lines v. Jones

• Decision Date: 18 January 1945
• Docket Number: 3 Div. 418.
• Citation: 246 Ala. 291,20 So.2d 599
• Parties: MONTGOMERY CITY LINES, Inc., v. JONES.
• Court: Alabama Supreme Court

20 So.2d 599

246 Ala. 291

MONTGOMERY CITY LINES, Inc., v. JONES.

3 Div. 418.

Supreme Court of Alabama

January 18, 1945

Steiner Crum & Weil, of Montgomery, for appellant.

Hill, Hill, Whiting & Rives and Walter J Knabe, all of Montgomery, for appellee.

Count 4 of the complaint is as follows:

'4. The Plaintiff, David Jones, as Administrator of the Estate of Mary Watson, Deceased, claims of the Defendant the sum of $25,000 as damages for that heretofore, to-wit, on the 2nd. day of December, 1942, the Defendant was engaged in the business of operating motor buses as a common carrier of passengers for hire or reward in the City of Montgomery Alabama, and then and there the Plaintiff's intestate was a passenger on one of the Defendant's motor buses on Holcombe Street near Jeff Davis Avenue, two public streets of the

City of Montgomery, Alabama, and then and there the brake hose, or other part of the air brakes on said motor bus, broke or burst, and the door of said bus became open and the Plaintiff's intestate fell or was pushed from said bus; and as the proximate result and consequence thereof, Plaintiff's intestate sustained injuries from which and as the proximate result of which she died on, to-wit, December 4, 1942.

'And the plaintiff avers that the said injuries to, and death of the Plaintiff's intestate were the proximate result and consequence of the negligence of the Defendant in the conduct of its said business.'

The following charges were given at plaintiff's request.

'E. The court charges the jury that the carrier's obligation is to carry its passengers safely and properly and that the carrier is obliged to protect its passengers from violence, from whatever source arising and it is bound to use all such reasonable precautions as are known to persons engaged in like business to make its passenger's journey safe.'

'F. The court charges the jury that as to passengers the contract of carriage imposes upon the carrier the duty, not only to carry safely and expeditiously between the termini of the route embraced in the contract, but also the duty to conserve by every reasonable means their convenience, comfort, and peace throughout the journey, and this same duty is, of course, upon the carrier's agents. They are under the duty of protecting each passenger from avoid able discomfort and from personal viclence. And it is not material from whence the disturbance of the passenger's peace and personal security and safety comes or is threatened; it may be from another passenger, or passengers. In all such cases, if negligent, the carrier is liable in damages for the death of the injured passenger proximately resulting from such negligence.'

THOMAS, Justice.

The suit was for personal injury resulting in death in the negligent operation of a motor bus as a common carrier of passengers for hire while plaintiff's intestate was a passenger thereon.

During the progress of the trial all original counts of the complaint were withdrawn and count four substituted. The demurrer, which had been filed to the original complaint, was refiled to count four, and overruled, and appellant then pleaded in short, the general issue, contributory negligence etc.

On the afternoon of December 2, 1942, plaintiff's intestate was a passenger on one of appellant's buses, on what is called its Washington Park line, having entered the bus in the downtown section. There were about fifty passengers on the bus, which was capable of carrying about sixty-five. There were seats for only about thirty-five, and a good many passengers were standing.

Leaving the downtown section, the bus proceeded west on Church Street, thence out Holcombe Street to Jeff Davis Avenue. There were three regular stopping points before reaching the point of the accident--one at Clayton Street, thence up a rather steep incline to Mildred Street to another stop and traffic light, then about midway the block, where South Street ends, the third stop. The next intersecting street is West Jeff Davis Avenue, where there is a regular stop, and Holcombe Street ends; the route then goes on out West Jeff Davis Avenue towards Washington Park.

This bus was in charge of one Thompson, who took it over about 2:30 that afternoon, and this was his second trip, when the accident happened. There was evidence tending to show that after leaving South Street and as the bus was approaching Jeff Davis Avenue, or about midway the half block, traveling at the rate of about fifteen miles per hour, the rubber hose portion of the air brake line blew out, making a noise about like a pistol, or, as some evidence showed, about like a 'tire blow-out,' with a sort of whistling sound. The sample of the rubber hose in use is certified to this Court as one of appellant's exhibits. This blow-out released the air, rendering the air brake useless, and the bus was brought to a stop as quickly as possible, by the use of the emergency or hand brake, and within from about two bus lengths to 150 feet from the point of the blow-out.

The mechanism by which the doors were opened and shut was, by the blow-out of the hose and resultant release of the air, rendered useless, and the doors could be opened and shut only by hand, which method was used on this occasion. The blow-out or explosion caused some dust to arise from the floor of the bus, or, according to some of the witnesses, some smoke, and there were some sparks to the rear of the bus. Some of the passengers began to holler, 'Fire!' or 'This bus is on fire!' and there was some excitement among the passengers. According to some of the witnesses, the rear door came open while the bus was coming to a stop. Others said the door was not opened until the bus stopped. There was the cry that, 'A woman jumped out back there.' When the bus stopped, the driver and others went back, found plaintiff's intestate, a negro woman about 24 years old, lying on the curb unconscious, her neck probably broken, and from which injury she died in a day or two.

There was a difference among the witnesses as to how this woman went out of the bus. Some of plaintiff's witnesses say she was pushed out of the door by other passengers, while several of the witnesses said they were standing immediately in front of the rear door and that she did not go out of the door at all. There was an open window on the curb side of the bus, next to the rear door, about 18 inches above the seat, size 26 by 30, and large enough for a 'good size man' to go out of, but no one testified that they saw her go out of the window.

The bus driver Thompson testified that he didn't know when or how she went out of the bus, nor anything about her being pushed off by any one. The front door was not opened until the bus came to a stop, when the bus driver opened it by hand and got out and went back to where the woman lay. An ambulance was called, the woman was taken to a hospital, and this bus was taken back to the shop under its own power, nothing being wrong with the exception of the air brakes or the hose, a material part of its operation.

No one else on the bus got out while it was moving, and no one else was hurt in any way.

Thompson, the bus driver, testified that there had been no previous trouble with this brake line; and by the testimony of Hopkins, the shop foreman, and Edwards, his assistant, it was shown that this rubber hose was manufactured by the Westinghouse people, who are regarded as reputable manufacturers of high-grade standard materials of this character, a necessary part of that brake equipment; that it was connected to two copper fittings--a part of or forming the brake line, the rubber hose portion being necessary because of its flexibility; that the explosion blew the hose in question into two parts; that the ordinary or normal life of the hose was from two to three years, and that this particular hose was installed on the bus, new, on September 21, 1942, a little over two months before the accident, when the former hose then on the bus was found to have a little leak in it. At that time the bus was given a thorough checking and everything necessary to be done was done. The new hose was examined when it was installed, and found to be free of any defects that could be discovered.

The evidence further showed that the bus was next inspected November 22, 1942, about ten days before the accident, there being nothing found to indicate any defect or imperfection. What is called a minor inspection of these buses is made about every 1000 or 2000 miles, and what is called a major inspection, which means the checking of everything about the bus, about every 3000 miles, which was as often as considered necessary in the operation of the business. This hose, the shop foreman said, was understood to withstand about 1000 pounds air pressure, and the amount of pressure applied to it by the bus would be only about 150 pounds.

The testimony of plaintiff's witness Curry tended to show that, he was a passenger on the bus; when the bus started up the hill out of Church Street at Fitts Hill Hospital 'That's where the trouble began; it was smoke and fire popping from the bus;' but that this condition stopped a while, until they got down to Holcombe and Mildred Streets. That the bus stopped at Mildred and let some passengers off and the driver opened the door and the bus was thereafter running with the door open. About the middle of the block, the bus seemed to be going about 35 miles or over, when some people started hollering out, 'Fire popping out,' and that there was fire coming out at the time from under the cushion of the back seat. That the fire was not coming up from the floor, just coming from under the cushion. Didn't come up at all, just came out. He didn't know whether anybody was sitting on...