Ortiz v. Greyhound Corporation

• Decision Date: 09 March 1960
• Docket Number: No. 7988.,7988.
• Citation: 275 F.2d 770
• Parties: Jose ORTIZ, Appellant, v. GREYHOUND CORPORATION and Frank Robert Liberati, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

275 F.2d 770 (1960)

Jose ORTIZ, Appellant, v. GREYHOUND CORPORATION and Frank Robert Liberati, Appellees.

No. 7988.

United States Court of Appeals Fourth Circuit.

Argued January 8, 1960.

Decided March 9, 1960.

Bernard M. Goldstein, Baltimore, Md. (Marvin I. Singer and Holniker & Wolf, Baltimore, Md., on the brief), for appellant.

Thomas G. Andrew, Baltimore, Md. (Rollins, Smalkin, Weston & Andrew, Baltimore, Md., on the brief), for appellees.

Before HAYNSWORTH and BOREMAN, Circuit Judges, and DALTON, District Judge.

BOREMAN, Circuit Judge.

This action was instituted by plaintiff appellant, Jose Ortiz, against The Greyhound Corporation, a public carrier, and Frank Robert Liberati to recover damages for injury suffered by Ortiz when he was struck by a Greyhound bus as it was backing from its stall at the Baltimore terminal. The case was properly removed from the Superior Court of Baltimore City to the United States District Court for the District of Maryland. Trial of the case resulted in a jury verdict of $5,000.00 in favor of Ortiz, but the District Court granted Greyhound's motion for judgment non obstante veredicto. This appeal followed.

On October 5, 1957, Ortiz, a man 67 years of age, with impaired vision and who was unable to effectively communicate in the English language, was a passenger of Greyhound from New York City, New York, to Baltimore, Maryland. Greyhound had not been informed of his infirmities. Upon arriving at the Baltimore terminal at 7:25 p. m., Ortiz alighted from the bus and, failing to find his daughter who had planned to meet him, remained either on the platform or in the waiting room until about 9:15 p. m., when he wandered out into the terminal driveway and was struck by a bus which had taken on passengers and was backing out of stall number 8.

In their testimony two of Greyhound's employees, Rush, a baggage attendant, and Cahill, a porter, placed Ortiz in the terminal waiting room for at least a portion of the time he was at the station. Ortiz, however, testified that he spent the entire time walking up and down the platform looking for his daughter; that he could not remember leaving the platform and he must have been struck while on it; and that when he awoke he was in the hospital. Witness Smith, a substitute driver awaiting assignment, saw Ortiz in the driveway area, about forty feet from the rear of the bus, five to ten minutes before the accident and thought from his actions that he had been drinking, but paid little attention to him because no bus was ready to leave and Ortiz was following a path which should safely lead him to the Centre Street exit from the driveway.

The bus involved in the accident was operated by Frank Liberati. He testified that after the passengers had boarded the bus he started the engine and received a signal from a buzzer that the air pressure was below the minimum operating limit; that he allowed the engine to run "at least a minute or a minute and a half" to build up the pressure; that the engine makes a great deal of noise when started; that he checked his side and rear view mirrors, gave one "beep" on the horn and started backing out; that he had traveled only three or four feet when he heard a noise on the side of the bus and stopped as quickly as possible; and that his first knowledge of the accident came when he went to the rear of the bus and saw Ortiz lying on the ground.

It was shown by the testimony of the investigating officer and others that the platform is shaped like "saw teeth", each tooth being a stall into which the bus is driven so that passengers may alight directly on the platform; that the platform is elevated some six to eight inches above the driveway area, is about twelve feet wide and is well lighted; that there are no barriers to prevent passengers from entering the driveway area; that the bus involved in the accident is about forty feet long; and that the accident occurred about forty-two feet from the front edge of stall number 8.

The District Court based its decision to grant judgment n. o. v. on what it considered the three most significant facts:

"(1) the accident to the plaintiff occurred two hours after he, as a passenger, had arrived and landed safely at the bus terminal in Baltimore;

"(2) his accidental injury occurred at a place not provided for or used by passengers but in a private driveway used by the defendant for the operation of its buses on arrival and departure from the terminal; and

"(3) no one saw or knew that the plaintiff was in a dangerous position before his injury." 175 F.Supp. 18.

The pertinent rule, as expressed in Snead v. New York Cent. R. Co., 4 Cir., 1954, 216 F.2d 169, 172, is as follows:

"`It is well settled that on a motion for a directed verdict or on motion for judgment n. o. v. based on such motion, the evidence must be considered in the light most favorable to the party against whom the the directed verdict or the judgment n. o. v. is asked, that any conflict in evidence must be resolved in his favor and that every conclusion or inference that can be legitimately drawn therefrom in his behalf must be drawn.\' * * *

"* * * Verdict can be directed only where there is no substantial evidence to support recovery by the party against whom it is directed or where the evidence is all against him or so overwhelmingly so as to leave no room to doubt what the fact is. * * *"

The majority of the court in the Snead case concluded that the judgment n. o. v. was improperly granted. Judge Soper dissented, not because of any disagreement as to the law but because of the application of the law to the facts of the case. His language, in the dissent, is particularly noted here. Quoting from Pennsylvania R. Co. v. Chamberlain, 1933, 288 U.S. 333, 343, 53 S.Ct. 391, 77 L.Ed. 819, Judge Soper said:

"* * * where the evidence is `so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury.\' * * * The rule is settled for the federal courts, and for many of the state courts, that whenever in the trial of a civil case the evidence is clearly such that if a verdict were rendered for one of the parties the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find according to the views of the court. Such a practice, this court has said, not only saves time and expense, but `gives scientific certainty to the law in its application to the facts and promotes the end of justice.\' * * * The scintilla rule has been definitely and repeatedly rejected so far as the federal courts are concerned."

See also Gunning v. Cooley, 1930, 281 U. S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Aetna Cas. & Sur. Co. v. Yeatts, 4 Cir., 1941, 122 F.2d 350; Roedegir v. Phillips, 4 Cir., 1936, 85 F.2d 995.

In the case here the evidence is so overwhelmingly against the plaintiff "as to leave no room to doubt what the fact is". Though Ortiz testified that he never left the platform, such testimony must be considered in light of his inability to recall many of the occurrences of the evening. He admittedly was greatly distressed when he could not find his daughter. He could not remember straying from the platform to the driveway area but insisted that the accident occurred on the platform. Credible witnesses, one of whom was called by Ortiz himself to prove that a Greyhound employee saw him and recognized his infirmity, unequivocally placed Ortiz in the waiting room shortly after he arrived at the terminal. All these considerations fully support the lower court's conclusions: (1) That there is no substantial evidence to contradict or impeach the testimony of the witnesses, Rush and Cahill, who said that Ortiz was safely seated in the waiting room; and (2) that, regardless of the foregoing determination, there is no material legal difference whether Ortiz wandered from the waiting room to the private driveway or more directly from the platform.

It is a well settled rule of law that a carrier owes to a person in a passenger status the duty to exercise the highest degree of care and skill in everything that concerns his safety. This duty is not limited to the actual transportation of passengers, but requires also that the carrier provide safe means of ingress to the station and vehicle, safe waiting spaces and safe means of egress from the vehicle and the station. Kaplan v. Baltimore & O. R. Co., 1954, 207 Md. 56, 113 A.2d 415; Dilley v. Baltimore Transit Co., 1944, 183 Md. 557, 39 A.2d 469, 155 A.L.R. 627. See also 13 C.J.S. Carriers §§ 678(a), 713, 723 (1939).

Bearing in mind these recognized principles, we must determine: (1) Whether Ortiz occupied the passenger status at the time of the accident; or (2) if not, what duty of care did the bus company owe to him because (a) an agent of the company saw...