Phillips v. Hardgrove, 22615.

• Court: United States State Supreme Court of Washington
• Writing for the Court: MAIN, J.
• Citation: 161 Wash. 121,296 P. 559
• Parties: PHILLIPS v. HARDGROVE et al.
• Docket Number: 22615.
• Decision Date: 03 March 1931

296 P. 559

161 Wash. 121

PHILLIPS v. HARDGROVE et al.

No. 22615.

Supreme Court of Washington

March 3, 1931

Department 1.

Appeal from Superior Court, Clallam County; Robert M. Jones, Judge.

Action by Walter Phillips against O. O. Hardgrove, School District No. 62 of, Clallam County, and Carl Mattson. Verdict for plaintiff against defendant last-named, and in favor of the first two named defendants, and from an order granting a new trial in respect to such first two named defendants, they appeal.

Affirmed.

Trumbull Severyns & Trumbull and John M. Wilson, all of Port Angeles for appellants.

Griffin & Griffin, of Seattle, and Wm. J. Conniff, of Port Angeles for respondent.

MAIN J.

This action was brought to recover for the death of a child, the daughter of the plaintiff. The cause was tried to the court and a jury, and a verdict was returned in favor of the plaintiff and against the defendant Carl Mattson in the total sum of $3,650, and in favor of the other two defendants. The plaintiffs moved for a new trial as to the defendants O. O Hardgrove and the school district. This motion was sustained, as recited in the order granting a new trial, on the ground that there had been error in the instructions by which the case was submitted to the jury. From the judgment granting a new trial, the defendants Hardgrove and the school district appeal.

The facts necessary to present the questions to be determined may be briefly stated. The appellant school district No. 62 is a district in Clallam county, and it had employed the appellant Hardgrove to convey the school children to and from the school in what is generally known as a school bus. The bus used by Hardgrove had a door at the rear which was operated by a lever near the driver's seat. There was another door at the right-hand side in front. September 20, 1928, the children were being conveyed from the school to the points where they usually alighted for the purpose of going to their respective homes. On the bus were Katherine Phillips, six years of age, a daughter of respondent, and her two brothers, aged, respectively, nine and eleven years. The bus stopped, headed west on the Olympic highway, after pulling to the right of the traveled portion of the road, for the purpose of permitting the Hardgrove children, and probably one or two others, to alight from the bus. At this time an automobile, driven by Carl Mattson, was approaching from the west. The day was clear, and the accident happened about 4 o'clock in the afternoon. When the bus stopped, Hardgrove opened the rear door; Katherine Phillips first alighted, followed by her brothers, and she immediately started across the highway to the south for the purpose of going to her home, which was on that side of the road. While crossing the road she was struck by the automobile driven by Mattson, and sustained injuries from which she subsequently died.

The action, as above stated, was brought to recover for her death. It is admitted that Hardgrove was the agent of the school district. The case was submitted to the jury upon the theory of ordinary care, and not upon the theory of the degree of care ordinarily applied to a carrier of passengers.

The first question is whether a school district, which operates a bus for the conveying of children to and from school, is required to exercise ordinary care or the highest degree of care consistent with the practical operation of the bus. If the district is required to exercise only ordinary care, then the case was properly submitted to the jury; on the other hand, if it is required to exercise the degree of care which is required of carriers of passengers generally, the court correctly granted the motion for new trial.

In Redfield v. School District, 48 Wash. 85, 92 P. 770, it was held that by reason of two sections of the statute (Rem. Comp. Stat. §§ 950, 951) the school district was liable for the negligent acts or omissions of its officers or agents in the performance of their duties. In that case the accident happened in the school room. In Howard v. Tacoma School District, 88 Wash. 167, 152 P. 1004, Ann. Cas. 1917D, 792, the defendant was held liable for negligence in the care and maintenance of the manual training equipment; in Kelley v. School District, 102 Wash. 343, 173 P. 333, the district was held liable for the care and maintenance of play ground equipment; and in Stovall v. Toppenish School District, 110 Wash. 97, 188 P. 12, 9 A. L. R. 908, the defendant was held liable for an accident occurring upon the school ground. In all of those cases and some others that might be cited, the court applied the rule of ordinary care. In the case now before us, the school district operated the bus, through its agent, for the carriage of passengers, school children, and the question, as already indicated, is whether it should be held to the same degree of care as other carriers of passengers.

The rule that carriers of passengers should be held to exercise the highest degree of care consistent with the practical operation of the means of conveyance used arises out of the nature of the employment and is based on the grounds of public policy. In Northern Pacific Railroad Co. v. Hess, 2 Wash. 383, 26 P. 866, 867, it is said:

'It is a fundamental principle of the law pertaining to passenger carriers that those thus engaged are under an obligation, arising out of the nature of their employment, and on grounds of public policy, to provide for the safety of passengers whom they have assumed for hire to carry from one place to another. Public policy and safety require that they be held to the greatest care and diligence in order that the personal safety of passengers be not left to chance or the negligence of careless agents; that, although the carrier does not warrant the safety of passengers against all events, yet his undertaking and liability as to them go to the extent that he, or his agents where he acts by agents, shall, so far as human care and foresight can go, transport them safely, and observe the utmost caution characteristic of careful, prudent

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