Oklahoma Ry. Co. v. Roebuck, No. 33951

• Court: Supreme Court of Oklahoma
• Writing for the Court: WELCH; GIBSON
• Citation: 240 P.2d 775,205 Okla. 549
• Decision Date: 04 December 1951
• Docket Number: No. 33951
• Parties: OKLAHOMA RY. CO. v. ROEBUCK.

Page 775

240 P.2d 775 205 Okla. 549 OKLAHOMA RY. CO.
v.
ROEBUCK. No. 33951. Supreme Court of Oklahoma. Dec. 4, 1951.

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Syllabus by the Court.

Where plaintiff contends she was injured while boarding a city bus, and a consideration of the evidence most favorable to defendant on the controversial points, and a consideration of the physical facts known to all, and of the uncontradicted evidence, demonstrates that plaintiff had progressed far enough in her good faith effort to board the bus, to attain the status of a passenger, it was not error in the instructions of the court to assume that the plaintiff was a passenger and entitled to the rights and to the protection due a passenger.

[205 Okla. 550] Richardson, Shartel, Cochran & Pruet and F. M. Dudley, all of Oklahoma City, for plaintiff in error.

James B. White and Abe Cohen, both of Oklahoma City, for defendant in error.

WELCH, Justice.

Plaintiff was injured when she boarded or attempted to board defendant's bus at a regular bus stop near a street intersection in Oklahoma City.

The trial court so framed his instructions to the jury as to constitute an assumption that the plaintiff was a passenger, and the jury was instructed that the defendant owed the plaintiff a high degree of care as a passenger. That is assigned as error and is relied upon for reversal.

Defendant points out that 'the fact as to whether plaintiff was a passenger was in controversy,' and by the instruction complained of 'the court assumed this controversy as proved, or as a law question, and withheld it from the jury.'

The controlling question is whether the plaintiff progressed far enough in boarding the bus or in attempting to board the bus to attain the status of a passenger.

Certain facts are conceded by all parties to be true, such as that the bus stopped at the regular place to take on passengers, and that several passengers got on the bus preceding whatever was done by plaintiff in boarding or attempting to board the bus, and that plaintiff was the last person at that stop to board the bus or to attempt to do so. It is also conceded that the plaintiff's left limb or foot was caught by the closing of the door and that she was dragged a short distance.

There was testimony in plaintiff's behalf to show that plaintiff in attempting to board the bus went so far as to get both her feet firmly planted on the step of the bus; that when the door started to close she was thereby forced partly out of the bus; that the closing door of the bus caught her left foot or left limb, throwing her to the ground and she screamed and the bus stopped after dragging her some distance.

Only one man operated defendant's bus. By his testimony the last person who preceded plaintiff in boarding the bus was a rather large man who paused to buy tokens so that the driver would be forced to look around him to see the door. The operator did not see plaintiff until after

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he closed the door and started the bus, when she screamed and his attention was directed to the door and he observed her then for the first time and saw that her left foot was trapped by the closing door. It is fair to assume from this evidence that the operator's view of the door was obstructed and that he could not and did not see whatever effort the plaintiff made to board the bus.

There was other evidence that plaintiff went so far as to get both feet in the doorway. There were other witnesses who saw plaintiff in and about the doorway, but were unable to see the extent to which she progressed in her effort to board the bus. No witness completely contradicted the plaintiff's testimony, and from the testimony of all other witnesses she got at least one foot and some part of her body or limb in the doorway.

Thus from the testimony most favorable to plaintiff she proceeded entirely into the inside of the doorway, while under the testimony most favorable to defendant she made good faith effort to board the bus and proceeded far enough to get at least one foot and part of one limb inside the door before the door closed and the bus started.

Under the latter statement the plaintiff was a passenger. A rule applicable thereto is stated in paragraph one of the syllabus in Clark v. Durham Traction Co., 138 N.C. 77, 50 S.E. 518: 'Plaintiff alighted from a street car, on which he had paid his fare, and [205 Okla. 551] received a transfer to a connecting line. As he attempted to board the connecting car at the usual place for the transfer of passengers, he was thrown to the street and injured by the sudden start of the car when he had one foot on the step and the other on the ground. Held, that plaintiff was a passenger at the time he was injured.'

In Burger v. Omaha & C. B. St. Ry. Co., 139 Iowa 645, 117 N.W. 35, a person was held to have attained the status of a passenger when he was attempting to board a street car, but the car started before the could completely get on and he maintained his hold on the handrail and ran along side for some distance in an effort to board the street car when finally his hold was broken or relinquished and he fell and was injured.

In Smith v. St. Paul City Ry, Co., 32 Minn. 1, 18 N.W. 827, it was held a...