This is
a civil action to recover for injuries alleged to have been
received when the plaintiff was hit by an automobile driven
by Clyde Kirby, and seriously injured. The
injury occurred while plaintiff was standing near the
defendant's bus at Grover, N.C., where he had left the
bus to let passengers alight therefrom.
The
plaintiff, on the morning of December 21, 1940, accompanied
by his wife, purchased bus tickets from Rockingham, N.C., to
Blacksburg, S.C. It was necessary to change busses in
Charlotte, where they boarded one of defendant's busses
for Blacksburg, S.C. The bus was crowded and plaintiff and
his wife stood up in the aisle near the front of the bus.
The
plaintiff testified that between Charlotte and Grover the bus
stopped three or four times and the bus driver requested
plaintiff and his wife to get off two or three times, in
order to let passengers out of the bus. When the bus arrived
at Grover, N.C., it was 7:30 or 8:00 o'clock P.M., and
was dark. The bus was pulled over to the left-hand side of
the highway on the grounds of a filling station, the regular
stopping place in Grover. The plaintiff further testified
"When we stopped the driver threw the door open and
asked me to step off and let the lady off as there was a lady
in the back of the bus that had to travel through all the
whole aisle, too, and we had to come out and let her off. As
that lady and the people started coming out they just crowded
me and I began to back out there to the side of the bus, out
the door, and that is about the only thing I know until about
three weeks later, when I was in the hospital. *** The lights
were on the bus as we stopped and when I stepped outside
where it was dark I was just like I was blind for a few
minutes after I stepped out there. The door is on the right
side of the bus. We were parked on the left-hand side of the
road. I will say the door was 3 1/2 feet, I imagine, probably
4 feet wide. It opened to the front. I had taken about two
and a half steps out from the steps of the bus there. These
people in the aisle kept on coming out. Well, as they were
coming out there, a bunch of ladies, about a couple of people
were between my wife and I, and so I just kept backing up to
keep them from stepping on my toes. There was a bunch of
ladies there and the next thing I knew I was hit by an
automobile and three weeks later I remembered it. The bus
driver didn't give any warning about any road being
there, or anything. I didn't have a bit of business
getting off there. I was not familiar with the surroundings
there that night where I was put off. I did not have any
intention of getting off there. I could not see whether the
bus stopped near the highway or some distance from the
highway, or what."
Plaintiff's
wife, Mrs. Roberta Ross, testified: "We were standing
there talking, my husband and I, and the bus stopped and I
did not even know where it stopped until he opened the door
and asked us to please step off so a lady could get off. He
stepped off before I did and in some way, like
people do when they get off the bus, they kinder get crowded
and mixed up when more than two get off, and he was two or
three steps in front of me. People standing in the aisle had
to get out so the lady in the back of the bus could get by.
There was a crowd out there beside the bus. I didn't get
as far away from the bus when I got out as my husband did.
When we were standing in the bus I couldn't see out and
the driver gave no warning of any road
or anything of that sort. Well, I saw some lights coming
before it struck Mr. Ross and I screamed and I don't
remember nothing else."
Clyde
Kirby testified for plaintiff as follows: "I could not
say how close the bus was to the highway. After I stopped I
didn't notice and I couldn't see anything. I thought
it was waiting on traffic. The bus was sitting there with its
lights on. By 'waiting on traffic' I mean so it could
come out in the highway." On cross-examination, this
witness testified: "Yes, sir, the Patrolman arrested me
for driving intoxicated, and I was convicted of driving in an
intoxicated condition at that time."
Plaintiff
offered in evidence the deposition of Grace Belk, in which
she testified as follows: "I happened to be in Grover
N.C., on December 21, 1940, when Mr. Ross was injured. Ivy
Allman and I went down in a car. Yes, the bus passed me just
before we reached the filling station at Grover. Our car and
the bus were both going South. After the bus passed it
stopped at the first filling station on the left. We stopped.
The bus was just a little bit in front of us and we stopped
just behind it. Yes, we were close enough to the bus to see
it stop. The bus stopped just right on the left side of the
road. We stopped right behind the bus. We were over further
than it was. The bus was right against the curb. Ivy Allman
is in the Army. He has been in the Army two months and is at
Camp Walters in Texas at present. I did not see anyone but
two boys get out before they got hit. They just stepped out
and the car hit them. Yes, they were the boys that were hit
by Clyde Kirby. Yes, I knew Clyde Kirby. Yes, Clyde Kirby was
the only one who was in the car that hit the boys. They had
just stepped out when they got hit and were right close to
the bus. When they were struck they were in the highway. Yes
the car that Clyde Kirby was driving was in the highway when
it hit the boys. After it struck the boys it went up the road
a little piece and stopped. Yes, Clyde Kirby pulled the car
over and stopped. The Ross boy was lying about two steps from
our car after he was struck. He was about two steps from our
car. Yes, he was lying in the highway after he was struck; he
was lying about two steps from our car over in the
highway."
The
usual issues of negligence, contributory negligence and
damages were submitted to the jury and answered in favor of
plaintiff. From judgment thereon, the defendant appeals,
assigning error.
Clyde R. Hoey, of Shelby, and Jones & Jones, of
Rockingham, for plaintiff.
Fred S.
Hutchins and H. Bryce Parker, both of Winston-Salem, and Fred
W. Bynum, of Rockingham, for defendant.
DENNY
Justice.
The
defendant assigns as error the refusal of his Honor to grant
its motion for judgment as of nonsuit lodged at the close of
plaintiff's evidence and renewed at the close of all the
evidence.
On a
motion to nonsuit, the evidence is to be taken in the light
most favorable to the plaintiff, and he is entitled to the
benefit of every reasonable inference to be drawn therefrom.
C.S. § 567, Wingler v. Miller, 223 N.C. 15, 25
S.E.2d 160; Edwards v. National Council Junior
Order, 220 N.C. 41, 16 S.E.2d 466; Coltrain v
Atlantic Coast Line R. Co., 216 N.C. 263, 4 S.E.2d 853;
Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787,
178 S.E.2d 601; Dickerson v. Reynolds, 205 N.C. 770,
172 S.E.2d 402; Cromwell v. Logan, 196 N.C. 588, 146
S.E. 233; Brown v. Southern R. Co., 195 N.C. 699,
143 S.E. 536; Robinson v. J.B. Ivey & Co., 193 N.C. 805,
138 S.E. 173. However, the defendant seriously contends that
under the law, as laid down in White v. Chappell,
219 N.C. 652, 14 S.E.2d 843, 848, the responsibility of the
defendant extended only to "a safe landing" or
"a landing in safety", and since there is evidence
to the effect that plaintiff's injury occurred from two
to ten minutes after the bus stopped and the plaintiff
alighted therefrom, that defendant had discharged its duty to
plaintiff, and is entitled to judgment as of nonsuit. The law
applicable to the facts in White v. Chappell, supra, does not
apply to the facts in the instant case. There the
relationship of carrier and passenger had terminated prior to
the time of the injury, here that relationship had not
terminated but still existed at the time of plaintiff's
injury. When the plaintiff's evidence on this record is
considered in a light most favorable to him, we think it is
sufficient to be submitted to the jury, and that his Honor
was...
