Panitz v. Orenge

• Decision Date: 28 December 1973
• Docket Number: No. 794--II,794--II
• Parties: Grace PANITZ, Appellant, v. Andrew M. ORENGE et al., Respondents.
• Court: Washington Court of Appeals

Page 317

10 Wn.App. 317

518 P.2d 726

Grace PANITZ, Appellant, v. Andrew M. ORENGE et al., Respondents.

No. 794--II.

Court of Appeals of Washington, Division 2.

Dec. 28, 1973.

A'Lan S. Hutchinson, Tacoma, for appellant.

R. Ross Burgess, Tacoma, for respondent (Tacoma Suburban Lines).

Kenneth G. Burrows, Comfort, Dolack, Hansler & Billett, Tacoma, for respondent (Andrew Orenge).

RYAN, Judge. ^*

This is an appeal from a judgment granted the defendant, Tacoma Suburban Lines (TSL) upon a challenge to the sufficiency of the evidence at the close of plaintiff's case and from a judgment in favor of defendants Orenge pursuant to a jury verdict.

Mrs. Panitz regularly was a passenger on TSL's bus from her home to her place of employment on the Fort Lewis Military Reservation. The driver ordinarily assigned to this route was driving the bus involved in this accident and Mrs. Panitz was a passenger.

The bus proceeding in a westerly direction on Pendleton Street which was a two-lane, one-way street. At the intersection with 12th Street, the bus pulled over to the right at the northeast corner in order to permit Mrs. Panitz to disembark. The bus came to a stop partially off the street and whether or not the nose of the bus protruded into the crosswalk was disputed.

Mrs. Panitz alighted from the bus and continued a conversation with the bus driver, with whom she had ridden as a passenger many times before. She then proceeded to cross Pendleton in front of the bus and was struck by defendant Orenge as she 'took a step out from behind the bus . . .' directly into the path of the Orenge vehicle which had been proceeding westerly behind the bus and was passing it at the moment of impact with the plaintiff who was thrown violently to the pavement, receiving the injuries complained of herein.

The bus driver and another nearby motorist testified that they sounded their horns to warn the plaintiff of her imminent peril but she testified she had not heard them. The other motorist and his passenger also testified they did not hear the bus horn sound. It is undisputed that Mrs. Panitz did not look to her left as she was crossing the street but was looking only straight ahead. There was a wide disparity in the testimony as to whether the plaintiff was 'running,' 'hurrying,' or--as she, the bus driver, and another witness testified--was walking at a normal pace.

The sharpest conflict in the testimony pertains to the key question of whether or not the bus driver waved the plaintiff across the street, indicating that she could safely proceed. Mrs. Panitz testified that she stepped off the bus and 'waved to the bus driver as he did to me, showing he had looked in the side view mirror and there was no traffic, so it was safe for me to cross.' The plaintiff further testified that when she was waved on by the bus driver she had 'faith that he was telling--the right thing.' She said that the bus driver had previously waved her across the crosswalk but this answer was objected to and was stricken by the court and the jury instructed to disregard it.

The bus driver testified that he 'just waved good morning, good bye, or whatever.'

The plaintiff bases this appeal on three assignments of error: first, that the court erred in granting TSL's motion to dismiss at the close of plaintiff's case on the grounds that all responsibility to her ceased after she was safely on the ground; second, that it was error to refuse to instruct regarding the duty of a driver to stop at a crosswalk when another vehicle has already stopped to permit a pedestrian to cross; third, that the court erred in excluding evidence of the plaintiff that the bus driver had waved her across the street on previous occasions.

We hold that the trial court was in error in granting TSL's motion for dismissal. The jury should have been allowed to consider: whether TSL's driver had waved Mrs. Panitz across the street; and if he did, whether the driver was negligent in so doing without first ascertaining that she could proceed in safety; and whether such negligence, if any, was a proximate cause of Mrs. Panitz's injury, together with her contributory negligence, if any.

The plaintiff urges that the law imposes an obligation upon everyone who attempts to do anything even gratuitously, for another, to exercise some degree of care and skill in the performance of what he had undertaken, for non-performance of which he is liable.

The duty of the bus driver in this case is asserted by the plaintiff to be described as follows:

Restatement (Second) of Torts § 323, 135 (1965).

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

It is stated that 'the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.' W. Prosser, Torts, ch. 9 at 327 (4th ed. 1971). The question of whether the bus driver had a Duty to exercise due care if he waved Mrs. Panitz...