Sams v. Pacific Indemnity Company

• Decision Date: 04 March 1959
• Docket Number: Civ. A. No. 706.
• Citation: 170 F. Supp. 909
• Parties: Ronald SAMS, a Minor, by and through William L. Sams and Mary Lee Sams, His Father and Mother and Next Friends, and William L. Sams and Mary Lee Sams, Individually, Plaintiffs, v. PACIFIC INDEMNITY COMPANY, Defendant.
• Court: U.S. District Court — Western District of Arkansas

170 F. Supp. 909

Ronald SAMS, a Minor, by and through William L. Sams and Mary Lee Sams, His Father and Mother and Next Friends, and William L. Sams and Mary Lee Sams, Individually, Plaintiffs, v. PACIFIC INDEMNITY COMPANY, Defendant.

Civ. A. No. 706.

United States District Court W. D. Arkansas, Texarkana Division.

March 4, 1959.

Connor W. Patman, Texarkana, Tex., George F. Edwardes, Texarkana, Ark., for plaintiffs.

Shaver, Tackett & Jones, Texarkana, Ark., for defendant.

JOHN E. MILLER, Chief Judge.

The plaintiffs, Ronald Sams, a minor, by his next friends, William L. Sams and Mary Lee Sams, and William L. Sams and Mary Lee Sams, individually, as father and mother, respectively, of the minor plaintiff, filed their complaint against defendant in which the minor plaintiff seeks to recover damages for personal injuries sustained by him on December 16, 1957, as the result of the alleged negligent operation of a school bus belonging to the Genoa-Central Consolidated School District and driven by Elmer Ward, an employee of the school district. The plaintiffs, William L. Sams and Mary Lee Sams, as parents of the minor plaintiff, seek to recover medical and hospital expenses incurred by them and for the loss of companionship and the services of the minor plaintiff because of the alleged negligence.

The plaintiffs in their complaint specifically alleged that defendant was guilty of the following acts of negligence:

(1) That the bus was being driven at an excessive rate of speed under the circumstances and conditions existing;

(2) That the bus was being operated in such a manner that the driver did not have complete control of the same;

(3) That the driver failed to use his brakes and other mechanical apparatus under his control to stop, turn or otherwise maneuver the bus or give warning to the children in the school yard, including the minor plaintiff, of the approaching danger;

(4) The driver should have turned his vehicle to the left and avoided striking the minor plaintiff;

(5) The driver failed to keep and maintain a proper and efficient lookout of such a nature and character as would have enabled him to discover the position of the minor plaintiff at a time when he could have stopped and avoided inflicting the injury upon the plaintiff;

(6) That if the driver did maintain such lookout that he discovered the perilous situation of the minor plaintiff in time, he could have avoided striking and running over the minor plaintiff; and

(7) That the driver was negligent in failing to so operate his bus with due regard for the safety of the children at play and as a direct result of each of all acts and omissions separately and concurrently, the driver failed to perform his duty and negligently injured the minor plaintiff.

In an amendment to the complaint the plaintiffs further alleged:

(1) That the driver of the bus drove and operated the same at a time when the bus was not equipped with mirrors or means by which he could see on the right-hand side of the bus (2) That the driver was negligent in operating the bus at a time when he could not perform the duty of exercising the proper lookout for children upon and about the premises; and

(3) That the vehicle was defective by reason of not having proper mirrors and a proper view to be operated in close proximity with children of tender age.

The defendant in its answer admitted that the plaintiffs are each citizens of Arkansas and reside in Miller County; that it is a foreign corporation and is authorized to do business in Arkansas and that it issued a policy of insurance to the school district as authorized by the Statutes of Arkansas; that Elmer Ward was employed by the school district as a bus driver and was driving the bus on the 16th day of December, 1957.

The defendant in defense of the claims of plaintiffs alleged:

"That at the time of the alleged accident herein, Elmer Ward, operator and driver of the involved school bus, was driving said bus in a careful and prudent manner and with due regard for the safety of others who might be upon and using the school grounds and that the accident and resulting injuries to the plaintiff, Ronald Sams, happened without any fault or carelessness on the part of the bus driver, Elmer Ward, but that the sole and proximate cause of said accident and resulting injuries to the minor child was the negligence of the said minor child, Ronald Sams, in that he was running by the side of the bus and touching same with one hand as same was approaching and entering the school grounds of said consolidated school district, all of which was to the rear of and beyond the vision of the driver of the bus. Therefore, defendant pleads said contributory negligence upon the part of the minor plaintiff, Ronald Sams, as a complete bar to any recovery herein by plaintiffs.

"Further answering, defendant states that the said accident and resulting injuries to Ronald Sams happened without any fault or carelessness on the part of the bus driver but was the result of an unavoidable accident over wihch this defendant had no control and for which this defendant would not be liable."

Ark.Stat.Ann. Sec. 66-517 (1947), provides that where liability insurance is carried by a school district "and any person * * * suffers injury or damage to person or property on account of the negligence or wrongful conduct of any such organization * * *, its servants, agents or employees acting within the scope of their employment or agency, then such person, * * * so injured or damaged shall have a direct cause of action against the insurance company or insurance association with which said liability insurance is carried to the extent of the amount or amounts provided for in said policy of insurance * * * and the plaintiff or plaintiffs may proceed directly against said insurer regardless of the fact that the actual tort-feasor may not be sued under the laws of this State."

The case was tried to the court without a jury on February 24, 1959.

The pleadings, the evidence and the arguments of the attorneys for the respective parties have been fully considered, and the court now files this opinion in lieu of formal findings of fact and conclusions of law, and incorporates herein as a part hereof the findings of fact and conclusions of law as provided by Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.

The minor plaintiff, Ronald Sams, was ten years old November 24, 1957. He was regularly enrolled and attended the consolidated school operated in the Genoa-Central Consolidated School District in Miller County, Arkansas. The school district operated a number of school buses to transport the pupils to and from the school. One of the buses was driven by Elmer Ward, an employee of the district, and on December 16, 1957, while acting within the scope of his employment in delivering the second bus load of pupils to the school building, the minor plaintiff was injured when he fell under the bus and the right rear dual wheels passed over the mid-section of his body.

The elementary, junior high and high school grades are all housed in the main school building which is located south of a county road that runs in an east-west direction. The usual place for unloading the pupils was on the south side of the building between the east and west wings. Ward, the driver of the bus, on the occasion under consideration, drove from the road across a cattle guard and entered the school grounds in the usual and customary manner. When he had crossed the cattle guard he drove south along the driveway on the east side of the school building until he reached the southeast corner of the east wing where the driveway turned west along the south end of the east wing, and proceeded along said driveway until he reached a point near the southwest corner of the said wing which was the east edge of the opening of the courtyard between the east and west wings. The courtyard was sixty feet wide east and west, and it was customary to discharge pupils at the south end of the courtyard between two trash barrels that were placed one at or near the southwest corner of the east wing and the other at the southeast corner of the west wing.

The testimony does not disclose how many sessions of the school had been attended by the minor plaintiff, but he was in his second or third year, if not his fourth, at the school. On this occasion, when the bus crossed the cattle guard from the highway and started south along the east side of the east wing, the minor plaintiff, along with two or three other boys, was standing near the northeast corner of the building. The bus entered the driveway traveling between five and ten miles per hour. The driver of the bus saw the minor plaintiff and the other boys at the time he entered the driveway, but did not see the minor plaintiff again until he stopped his bus for the purpose of unloading the pupils.

The testimony does not disclose the width of the driveway which the bus entered, but it was an improved driveway and ran several feet east of the east wall of the building. Another bus had preceded the bus being driven by Ward and had unloaded and was parked south of the main building on the school grounds. The driver of that bus, Mr. Huddle A. Ferguson, had left his bus and was walking north toward the cattle guard while Ward was driving south along the driveway. Ferguson saw the minor plaintiff come from near the northeast corner of the building after the bus had passed, and begin running south behind and toward the moving bus. He watched him until the bus turned to the west around the southeast corner when both bus and the minor plaintiff passed from his view. There is some dispute in the testimony as to whether the minor plaintiff had caught up with the bus when it turned west and whether he was running alongside of the bus or whether he was near the right front of the bus and had reached a point where he could be seen by the driver of the bus prior to the time ...