Pendarvis v. Pfeifer

Citation132 Fla. 724,182 So. 307
Decision Date10 June 1938
CourtUnited States State Supreme Court of Florida

Rehearing Denied July 1, 1938.

Error to Circuit Court, Duval County; A. D. McNeill, Judge.

Action by Robert E. Pfeifer, by E. C. Pfeifer, his next friend against Dewey Pendarvis, for injuries caused by defendant's negligence in operation of schoolbus. To review a judgment on a verdict for plaintiff, defendant brings writ of error.


On Petition for Rehearing.


John L. Nixon and Marks, Marks, Holt, Gray & Yates all of Jacksonville, for plaintiff in error.

Evan T Evans, of Jacksonville, for defendant in error.


CHAPMAN Justice.

This suit is before the Court on writ of error to a verdict and judgment in the sum of $10,000 entered in behalf of the plaintiff below due to the negligence of the defendant in operation of a school bus on the public highway of Duval County, Florida. The declaration alleged that while the defendant was operating a school bus and while the plaintiff, a child of eight years of age and a school pupil, was being transported thereby, the defendant negligently controlled the exit from the bus by stopping it on the opposite side of the highway from plaintiff's home; permitted or allowed the bus door to be opened and plaintiff to alight therefrom and attempt to cross the highway at a dangerous time and place, viz.: when a car was approaching said bus, making it dangerous to alight, and plaintiff was struck by an automobile under said circumstances and sustained personal injuries.

The defendant filed a number of pleas to the declaration, some disallowed and others permitted to stand. Those allowed, broadly speaking, are: (a) not guilty; (b) denial that an automobile was approaching at a dangerous time and place; (c) that plaintiff's injuries were due to the negligence of the automobile driver; (d) increased speed of the automobile after plaintiff alighted from the school bus; (e) there was no danger from the automobile until after plaintiff's exit from the bus; (f) the bus door was opened without defendant's knowledge or consent; (g) contributory negligence.

The issues thusly tendered were submitted to a jury under appropriate instructions and a verdict for the plaintiff was rendered in the sum of $10,000. The court below heard a motion for a new trial, but overruled and denied the same. He ordered a remittitur filed in the sum of $3,000 and permitted the entry of a judgment for the plaintiff in the sum of $7,000.

The parties to this cause in this opinion will be referred to as they appeared in the lower court, as plaintiff and defendant. Counsel for the defendant assign some thirty-seven errors for reversal, but all of the same in the brief filed are presented and argued under some eleven separate questions. The first question for decision as submitted by counsel is: Is a school bus driver negligent in permitting a child to alight from his bus when an automobile is approaching, if the driver has reason to believe that said automobile will obey the law and stop before attempting to pass the bus? It may be that the above question does not contain or recite a correct statement of facts for us to consider here, but the objective, broadly speaking, is whether or not the negligence alleged in the declaration is actionable. Counsel for plaintiff below cites the case of Burnett v. Allen, 114 Fla. 489, 154 So. 515, to sustain the legal sufficiency of his declaration charging actionable negligence. The facts in the case at bar are very much like those in Burnett v. Allen, supra. The declaration contained two counts, the negligence contained two counts, the negligence furnished and was driving a public school bus while intoxicated and negligently permitted a seven year old pupil to get out of the bus while it was in motion and while crossing the road was struck by an approaching truck'; and the other count charged as negligence 'that defendant furnished and drove a public school bus and permitted a wire screen thereon to fall into disrepair whereby a seven year old school pupil reached through the screen and opened the door while the bus was in motion and the pupil alighted and was crossing the road and was injured by an approaching truck'. The lower court held that the declaration failed to show actionable negligence. On appeal to this court the judgment of the lower court was reversed and this court, through Mr. Justice Buford, said (page 518):

'By assuming to perform the contract alleged in the declaration, the defendant, by necessary implication, assumed to perform every act, reasonably necessary for the safety of the children intrusted to his care while in transportation, which would include the operation of safely receiving the children into the bus and in superintending and directing their safe exit from the bus and their safe departure from the bus.

'The bus driver who contracts to furnish transportation and to transport school children from places at or near their residences to public free school becomes a special contractor for hire, and his contract of employment with the Board of Public Instruction becomes a contract with him made by the Board of Public Instruction for the use and benefit of each and every of those persons who are to be transported by him under the contract. As the contract contemplated the transportation of children who are incompetent to be charged with the assumption of risk because of their tender years and inexperience, it likewise contemplates, and by implication at least binds, the person contracting to furnish and conduct the means of transportation to use every reasonable precaution and care for the safety of such children and to prevent any harm or damage coming to them, either in approaching the bus, or while riding in the bus or when alighting from and leaving the immediate proximity of the bus at the completion of their journey, or at any time during the journey. Whether a person so contracting and performing such a contract has used all such reasonable care and caution is a question for the determination of a jury in each case.

'It may be that there is some conflict in authorities throughout the country as to the liability of a contracting school bus driver in cases of this character, but we think the weight of authority sustains the above enunciation. See Shannon v. Central-Gaither Union School Dist., , 23 P.2d 769; 45 C.J. 702; Marion County v. Cantrell, , 61 S.W.2d 477, and cases cited; Machenheimer v. Falknor, 144 Wash. 27, 255 P. 1031; Embody v. Cox, 157 Wash. 464, 289 P. 44; McQuillan v. City of Seattle, 10 Wash. 464, 38 P. 1119, 45 Am.St.Rep. 799; Phillips v. Hardgrove et al., 161 Wash. 121, 296 P. 559; Cleveland-Akron-Canton Bus Co. v. Walker, 30 Ohio App. 411, 165 N.E. 373; Mayhew v. Ohio Valley Elec. Ry. Co., 200 Ky. 105, 254 S.W. 202.

' In Bagdad Land & Lumber Co. v. Boyette, 104 Fla. 699, 140 So. 798, we said:

"Children are necessarily lacking in the knowledge of physical causes and effects which is usually acquired only through experience. They must be expected to act upon childish instincts and impulses, and must be presumed to have less ability to take care of themselves than adults have. Therefore, in cases where their safety is involved, more care is demanded than toward adults, and all persons who are chargeable with a duty of care and caution toward them must consider this and take precautions accordingly. When an infant is discovered on or dangerously close to a railroad track reasonable care strictly commensurate with the demands and exigencies of the occasion must be exercised to avoid injuring it.'
'And cited Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 So. 183, 7 Ann.Cas. 241, and Union Pacific Ry. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434.'

We have observed the analysis, as made by counsel for the defendant in Burnett v. Allen, supra, and the several authorities cited in support of the conclusion reached. Likewise we have considered the following authorities cited: Haase v. Central Union High School Dist., 15 Cal.App.2d 102, 59 P.2d 193; Pelfrey v. Snowden, 267 Ky. 432, 102 S.W.2d 352; Stuckwish v. Hagan Corporation, 316 Pa. 513, 175 A. 381.

It is contended that plaintiff's injuries were due to negligence of the driver of the approaching automobile and to hold the driver of the bus liable under these circumstances makes him an insurer of the safety of his passengers after his relationship had ceased or ended. It cannot be overlooked that the driver of the bus was under certain duties and obligations to the plaintiff as pointed out in Burnett v. Allen, supra, and the further fact that the driver of the approaching automobile which struck plaintiff likewise was negligent would or could not be an excuse or defense for the defendant's failure to discharge his duties and obligations to the plaintiff when alighting from the bus or when and where injured. Joint tort feasors are separately as well as jointly liable but it is optional with the plaintiff whether he seeks a judgment against one or all of them. See Anderson v. Crawford, 111 Fla. 381, 149 So. 656. We sustain the conclusions of the lower court to the effect that the declaration states a cause of action.

It is next contended that the lower court erred in sustaining objection or objections made by counsel for the plaintiff to questions propounded to the defendant during the trial of the cause, viz.:

'Q. What was the reason for your allowing Bobby to get out of the bus when this approaching automobile was about 300 feet away?'

'Q. Well, was the automobile going too fast to stop?'

'Q. Did you know, Mr. Pendarvis, of any Statute requiring automobiles to come to a stop as they approached the school bus and before passing...

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