Rogers v. Los Angeles Transit Lines

• Citation: 289 P.2d 226,45 Cal.2d 414
• Court: California Supreme Court
• Decision Date: 28 October 1955
• Parties: Anthony ROGERS, Plaintiff and Respondent, v. LOS ANGELES TRANSIT LINES, Langendorf United Bakeries, Inc., Ben B. Harmell and E. E. Feb, Defendants and Appellants. L.A. 23806

Page 226

289 P.2d 226

45 Cal.2d 414

Anthony ROGERS, Plaintiff and Respondent, v. LOS ANGELES TRANSIT LINES, Langendorf United Bakeries, Inc., Ben B. Harmell and E. E. Feb, Defendants and Appellants.

L.A. 23806.

Supreme Court of California

Oct. 28, 1955.

Melvin L. R. Harris, David S. Smith, Parker, Stanbury, Reese & McGee and William C. Wetherbee, Los Angeles, for appellants.

F. Murray Keslar, Los Angeles, for respondent.

CARTER, Justice.

Defendants, Los Angeles Transit Lines, hereafter called Transit Lines, a common carrier of passengers by bus in Los Angeles, Feb, the driver of one of its busses, Langendorf United Bakeries, hereafter called Langendorf, a corporation operating trucks delivering its products, and Harmell, the driver of one of its trucks, appeal from a judgment entered on a jury verdict for damages for plaintiff for personal injuries alleged to have been suffered by plaintiff as the result of defendants' negligence. Plaintiff's right arm was injured when he was resting it on the window ledge of Transit Lines' bus in which he was riding as a passenger when it collided with the rear door of Langendorf's truck.

Plaintiff was riding as a regular passenger on a Transit Lines' bus driven by Feb. He was seated on the right rear side of the bus beside a window. The day was warm and that window and others were open. The window ledge was shoulder high to plaintiff, and he was resting his right arm on it with his elbow protruding beyond the outside of the ledge. The bus was being driven on Beverly Boulevard, a street having three lanes on each side of its center including the one next to the curb. Langendorf's truck was parked on Beverly Boulevard in the curb lane about half way between two streets intersecting Beverly. The bus swung to the curb lane and made a stop. The driver proceeded ahead swinging the bus out toward the center lane (of the three lanes) and around the truck. He drove so close to the truck that plaintiff's elbow collided with the door on the end of the truck which was open and in that position extended beyond the side of the truck. As a result thereof plaintiff suffered the injuries for which he was awarded damages against all four defendants.

Defendants Transit Lines and Feb contend that as a matter of law they were not negligent; that plaintiff was contributively negligent and had assumed the risk; and that there was error with respect to the jury instructions.

It is conceded by those defendants that: '(T)he duty of care owed to a passenger by a common carrier includes the use of the utmost care and diligence for his safe carriage.' McBride v. Atchison, Topeka & S. F. Ry. Co., 44 Cal.2d 113, 279 P.2d 966, 968. In the light of that rule the jury could properly conclude, as it did, that the bus was driven too close to the parked truck for safety. The bus was 105 inches wide; the middle lane in which it was proceeding was 108 inches wide. While no part of the bus contacted any part of the truck, the proximity of the bus to the truck was evident. Plaintiff's elbow was struck and it protruded only 2 to 4 inches beyond the window sill. The rear door of the truck when open extended 4 inches beyond the fender, the widest part of the truck. Plaintiff testified that the door on the truck was opened just before his elbow was struck, and it was for the jury to decide that the bus driver should have anticipated that might happen; that it was not an independent intervening cause such as would break the chain of causation. See Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269; Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 282 P.2d 69. There were no guards or bars on the bus window. It is common practice for a person to rest his arm on the window sill of the vehicle which he is driving or in which he is riding and allow his elbow to protrude to some extent beyond the window sill. While it would appear that the doctrine of res ipsa loquitur is clearly applicable as between plaintiff and Feb and Transit Lines, plaintiff did not invoke the doctrine either in the trial court or on this appeal. It may be relied upon, however, to support a judgment even though plaintiff offers no jury instruction on the subject and none is given. Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7; Rose v. Melody Lane, 39 Cal.2d 481, 247 P.2d 335.

It is clear that the jury was not required to find plaintiff was contributively negligent or that he had assumed the risk. In addition to the evidence above mentioned plaintiff testified that he had no awareness of impending danger before the accident happened and that he did not think his arm could be hit; he was not watching the traffic.

Resting the arm on the window sill such as was done here does not constitute contributory negligence as a matter of law; it is a question for the jury. See Albania v. Kovacevich, 44 Cal.App.2d 925, 113 P.2d 251; Ivancich v. Davis, 186 Cal. 520, 199 P. 784; Gornstein v. Priver, 64 Cal.App. 249, 221 P. 396; Lindenberg v. Needles, 203 Md. 8, 97 A.2d 901, 40 A.L.R.2d 233; Capitol Motor Lines v. Billingslea, 246 Ala. 501, 21 So.2d 240, 157 A.L.R. 1212; Georgetown & T. R. Co. v. Smith, 25 App.D.C. 259, 5 L.R.A., N.S., 274; Malakia v. Rhode Island Co., 36 R.I. 149, 89 A. 337, Ann.Cas. 1916C, p. 1218. While there are a few authorities to the contrary, the great weight of authority is as stated. (See authorities cited supra.)

As to assumption of the risk the jury was justified in concluding that plaintiff did not have actual knowledge and appreciation of the danger involved so as to consent to the risk and the facts do not show that he knew of and appreciated the hazard. See Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 265 P,2d 904. He was not required to anticipate that Transit Lines and Langendorf would be negligent. Plaintiff could not have assumed the risk at all unless he actually saw that the door of the Langendorf truck was open some time before it struck his elbow and also knew that the bus was being driven too close to it. While a person, if fully informed, may assume the risk even though the dangerous condition is caused...