Ragonese v. Hilferty

• Decision Date: 05 June 1963
• Docket Number: No. 253,253
• Citation: 191 A.2d 422,231 Md. 520
• Parties: Edward RAGONESE, an infant, etc., et al. v. Edward F. HILFERTY and John A. Smith, et al., etc.
• Court: Maryland Court of Appeals

Page 520

231 Md. 520

191 A.2d 422

Edward RAGONESE, an infant, etc., et al. v. Edward F. HILFERTY and John A. Smith, et al., etc.

No. 253.

Court of Appeals of Maryland.

June 5, 1963.

Nathan Patz, Baltimore, for appellants.

Robert E. Coughlan, Jr., Baltimore (Alva P. Weaver, III, and Lord, Whip, Coughlan & Green, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY, and SYBERT, JJ.

SYBERT, Judge.

This is an appeal from a judgment for costs entered by the Superior Court of Baltimore City on a jury verdict in favor of the appellees (defendants below), Edward F. Hilferty and a partnership doing business as Smith's Bus Company, in a suit brought by the infant appellant, Edward Ragonese, and his parents for injuries and consequential damages sustained as a result of his being struck by an automobile after his discharge from a school bus driven by Hilferty and owned by the bus company.

The Ragoness boy, eight years of age at the time of the accident, had been transported daily, with other fare paying school children, between his home and his school (both in Baltimore City) by the bus, pursuant to an oral contract between his parents and the bus company. The bus would pick up the boy in front of his home at 102 East Belvedere Avenue, on the north side of the street, in the morning and would discharge him on the south side of Belvedere Avenue, opposite his home, in the afternoon. The evidence shows that Mrs. Ragonese knew this and that it was because the bus company had an established route which it would not change.

The testimony of the appellee. Hilferty, indicated that he had had approximately 20 years' experience as a school bus driver prior to the accident, which occurred on March 2, 1956. On that afternoon the bus, carrying approximately 40 homeward bound students, proceeded from the school in an easterly direction along Belvedere Avenue and stopped next to the south curb at a Baltimore Transit Company bus stop, which was marked by a sign reading 'Bus Stop'. This point is directly across Belvedere Avenue from the Ragonese residence. Belvedere Avenue, at that point, is 36 feet in width and accommodates two lanes of moving traffic in each direction. The street runs generally in an east-west direction but, immediately to the east of the Ragonese home, it curves slightly toward the north and also rises gradually to the crest of a hill which is approximately 510 feet from, and 17 feet higher than, the Ragonese entrance walkway. A police officer and the injured boy's father testified that there had been no change in the street since the accident. A photograph, taken in 1962 and introduced by the plaintiffs, shows a double white line in the center of the street.

The day of the accident was clear and dry. When the bus stopped, its front end was approximately 50 feet west of Croyden Road, a public street dead-ending into Belvedere Avenue from the south. The bus was painted yellow and was equipped front and rear with double red flashing lights which were operating. The testimony was that the bus remained stopped with its doors closed for about two minutes waiting for traffic in both directions to stop. All traffic in sight did stop. At least one car stopped about 15 feet to the rear of the school bus headed easterly in the 'fast' lane, thus effectively blocking east-bound traffic. A line of at least three west-bound cars stopped, the first one being from 20 to 25 feet in front of the bus. These automobiles were about in the middle of the two west-bound lanes but closer to the center of the street than to the north curb, thus apparently blocking west-bound traffic.

The eldest student on the school bus was twelve year old Susan Pollard, who was in the seventh grade and was a member of the school safety partol. Susan escorted Edward Ragonese off the bus, crossed in front of it, and stood at its front left corner and looked in both directions, holding the boy's hand. She said there was no moving traffic on Belvedere Avenue in either direction, so she stepped out from the bus and told the boy to cross the street. The boy began to run, diagonally, in a northwesterly direction, toward the north curb. Apparently at, or very near to, the moment the boy began to run, an automobile owed and operated by one Chester Giddings in a westerly direction passed the three stopped automobiles at a rapid rate of speed, characterized as in excess of the 30-mile speed limit, with its left wheels across the center line of Belvedere Avenue, and then cut back into the west bound lane, striking Edward several feet from the north curb, and injuring him seriously.

Susan Pollard testified that no one asked her to accompany the Ragonese boy out of the bus, and that neither Hilferty nor any other representative of the bus company had ever given her instructions on what to do. She said her action was part of the safety program at the school, and that her duties consisted of '[m]ainly keeping order on the bus an making sure the children were seated, and if necessary taking them across the street or watching them across the street.' She had accompanied the Ragonese boy on prior occasions.

The suit named Giddings, the driver of the car which struck the boy, as a defendant along with the appellees. Giddings died some time after the accident, and the suit proceeded against the appellees only.

Three witnesses testified as to the happening of the accident. Hilferty, who had not left the driver's seat of the bus, testified that he did not see the Giddings vehicle until it was right on Edward, but that he did hear the screeching of brakes immediately before. He said that just prior to that his attention might have been distracted by the children behind him in the bus. Susan Pollard said she did not see the Giddings vehicle until a moment before it struck the boy. Edward L. Barrett, a passenger in the front seat of the automobile stopped in the fast lane of traffic to the rear of the bus, who had an unobstructed view, first observed the Giddings automobile as it came, straddling the center line, at a very rapid rate of speed around the stopped cars, shortly after Susan had released the boy. Barrett estimated that this was about two or three seconds before the child was struck. The operator of the car in which Barrett was a passenger could not be located, and the infant plaintiff did not testify.

The point of impact as established by the investigating police officer was 69 feet west of Croydon Road and 9 feet south of the north curb of Belvedere. The officer testified that the impact was opposite the middle or toward the rear of the bus. Barrett placed the point of impact as somewhat to the rear of the front of the bus, while Hilferty testified that the point of impact was to the rear of his driver's seat at the front of the bus. The Giddings vehicle left skid marks but their length was not established by the evidence. There was testimony that the running boy had almost cleared the oncoming car, but that its right front fender struck him.

No evidence was produced to show that the oral contract between the Ragoneses and the bus company required the bus driver to leave te bus and escort the boy across the street. Hilferty testified that there was an unwritten rule of the bus company that a driver was not supposed to leave his seat. He said that prior to the accident Mrs. Ragonese had spoked to him several times about it, and that he always replied, 'I would do the best I could.' He stated that on 'most occasions' he would take the boy to the left front of the bus and let him go across when traffic was clear. On other occasions a school safety patrol member who was on the bus would escort the boy part way across the street. Mrs. Ragonese testified that Hilferty told her 'that he never lets a child my boy's age off the bus unless he supervises the crossing and that I need not worry.'

At the conclusion of all the evidence, appellees moved for a directed verdict and the court reserved ruling thereon. Appellees further submitted three instructions which were in substance requests for a directed verdict and rulings thereon were also reserved. After charge and argument, the case was submitted to the jury, which returned a verdict in favor of the appellees.

On this appeal the appellants make five contentions, all relating to the fairness and adequacy of the court's charge to the jury. Although the appellees answer each of these contentions, they maintain that the propriety, vel non, of the instructions is not the determinative issue on this appeal, their position being that the trial court erred in submitting the case to the jury at all. If the appellees' stand is correct any consideration of the instructions would be precluded, so we shall proceed immediately to this phase of the case. In passing upon the defendants' motion for a directed verdict we must, of course view the evidence and all reasonable inferences therefrom in the light most favorable...