Schiltz v. Picton

• Decision Date: 10 December 1938
• Docket Number: 8129.
• Citation: 282 N.W. 519,66 S.D. 301
• Parties: SCHILTZ v. PICTON.
• Court: South Dakota Supreme Court

282 N.W. 519

66 S.D. 301

SCHILTZ v. PICTON.

No. 8129.

Supreme Court of South Dakota

December 10, 1938

Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.

Action by Robert Schiltz, by Joseph J. Schiltz, his guardian ad litem, against Emma L. Picton for injuries while alighting from a bus. Judgment for plaintiff, and defendant appeals.

Reversed.

Williamson & Williamson, of Aberdeen, for appellant.

J. M Berry, of Ipswich, for respondent.

RUDOLPH Judge.

The plaintiff, a boy ten years of age, brought this action, by his guardian ad litem, to recover against the defendant for injuries which plaintiff sustained after alighting from a bus operated by defendant's agent. So far as here material the following facts are disclosed by this record. The defendant entered into a contract with the Ipswich Independent School District for the transportation of pupils to and from the pupils' residences and the Ipswich public school. In this contract the defendant was designated as party of the second part. The material part of the contract is as follows: "The Party of the Second Part agrees that she will furnish, equip and maintain one motor bus and transport thereby the school children of the above school district residing on the North Route, to and from their several places of residence, and the Ipswich Public School within the City of Ipswich, for a period of three years from September 2nd, 1935, at all times that the public schools are in session." The plaintiff did not attend the public school but attended a school designated in the record as the "Catholic School" located in Ipswich. Sometime after the contract was entered into the defendant was told by the superintendent of the Ipswich public school "to drive to the Catholic school and get the children there." The plaintiff lived in the city of Ipswich and only a few blocks from the school which he attended. On the day in question plaintiff got into the bus of the defendant at the Catholic school and rode in the bus a distance of eleven or twelve miles while pupils were being delivered to their homes in the country, and returned with the bus to Ipswich. The bus came into Ipswich on what is known as Highway No. 12. The plaintiff's home was about two blocks south of this highway. Upon arriving in Ipswich the bus driver stopped his bus on the highway at a point north of plaintiff's home. Plaintiff alighted from the bus, ran around the rear end and out into the street, and either struck or was struck by a car coming from the direction toward which the bus was facing. The alleged negligence on the part of the driver of the bus is a failure to notify the boy of the approaching car and permitting him to alight from the bus without warning him of the car approaching. At the close of the evidence the defendant moved for a directed verdict upon the ground, among others, that the plaintiff was a guest passenger within the meaning of Chapter 147, Laws of 1933, and that there was no showing of gross negligence or wilful and wanton misconduct upon which any liability could be predicated. The trial court denied this motion and submitted the case to the jury which returned a verdict in favor of the plaintiff. The defendant has appealed.

The contract entered into between defendant and the Ipswich Independent School District did not contemplate the transportation of pupils between their...