Smith v. Portland Traction Co.

• Decision Date: 21 February 1961
• Parties: Edward F. SMITH, Appellant, v. PORTLAND TRACTION COMPANY, a corporation, Respondent.
• Court: Oregon Supreme Court

Page 899

359 P.2d 899

226 Or. 221

Edward F. SMITH, Appellant, v. PORTLAND TRACTION COMPANY, a corporation, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 7, 1960.

Decided Feb. 21, 1961.

Alan H. Johansen, Portland, argued the cause for appellant. With him on the brief were Krause, Lindsay & Nahstoll, Portland.

Lamar Tooze, Jr. and Edwin J. Peterson, Portland, argued the cause for respondent. With them on the brief were Tooze, Kerr, Tooze & Morrell, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and KING, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff, Edward Smith, from a judgment in favor of the defendant, Portland Traction Company, which the circuit court entered after it had sustained the defendant's motion for a judgment of involuntary nonsuit.

The defendant is a common carrier, and upon the occasion with which this case is concerned the plaintiff's wife, Daisy Smith, was a passenger in one of its buses. The plaintiff brought this action to recover damages for (1) medical expenses incurred for his wife, (2) the loss to him of her consortium and (3) the loss to him of her services as secretary in his office--all of which he alleges he sustained through the defendant's purported negligence. The plaintiff charges that when the defendant stopped its bus in the intersection of southwest Park Place and Vista Avenue in Portland so that his wife and several other passengers could depart, it disregarded the demands of Portland Ordinance No. 75607 and of due care. He claims that it chose an unsafe place for the passengers to alight. In endeavoring to step down Mrs. Smith, who was heavy and 64 years of age, fell to the pavement and was injured. The mishap occurred November 20, 1953, at 5:40 p. m. The place where it occurred was dark although a street light was near by. Seemingly the presence of the bus cast a shadow upon the place where Mrs. Smith undertook to alight. The pavement was dry and in good condition although the plaintiff's brief states 'it contained ripples, varying from one-eighth inch to one-fourth inch.' The curb stone which was near the place where Mrs. Smith fell was approximately 7 inches high. Mrs. Smith had ridden upon this bus line twice a week since 1941 or about 1200 times. The appellant's (plaintiff) brief says, 'Plaintiff's wife had disembarked from the bus at this intersection before,' and continues: 'Although she had been discharged from defendant's buses out away from the curb on previous occasions this had not happened very often, and she expected on the occasion in question to be able to step nearer to the curb.' Upon the occasion in question the bus stopped six to six and one-half feet from the curb. In departing from the bus Mrs. Smith followed some other passengers and through seeing them walk to the curb after alighting knew that the bus was not adjacent to it. She did not know the cause of her fall. Due to the fact that the intersection where Mrs. Smith fell is in a hilly part of Portland the pavement in the intersection slopes east and north toward the curb. The slope varies from 11.4 to 13.1 per cent.

The plaintiff claims that the defendant was negligent in the following particulars:

1. Failure to have pulled up to the curb.

2. The discharge of the passengers at a place where the pavement sloped.

3. The use of an unsafe bus stop.

4. Failure to maintain an adequate lookout.

5. Failure to warn Mrs. Smith 'of the said danger in alighting.'

After her injury Mrs. Smith brought an action against the defendant in which she averred that the defendant was negligent. Upon trial the jury returned a verdict for the defendant upon which judgment was entered and Mrs. Smith appealed. Smith v. Portland Traction Company, 220 Or. 215, 349 P.2d 286, affirmed the judgment for the defendant which the circuit court entered in Mrs. Smith's case. The issues which were submitted upon appeal in that action were materially different from those we face in this one.

The plaintiff presents three assignments of error. The first of them reads:

'The court erred in excluding from evidence Portland City Ordinance No. 75607, known as the 'Traffic Code,' including § 19-1304(b) thereof.'

The second assignment of error challanges the ruling of the trial judge which sustained, at the close of the plaintiff's case, the defendant's motion for an order of involuntary nonsuit. The third is concerned with the measure of damages, but since it will be unnecessary to consider damages if the second assignment of error is sustained, we will not at this point set it forth.

We will now consider the first assignment of error. Portland's City Ordinance No. 75607 § 19-1304 provides inter alia:

'Wherever no bus-loading zone is provided at the curb, all motor buses and all trolley coaches, except such trolley coaches as may be operated from contact with a positive streetcar trolley wire, shall pull to the right-hand curb for the purpose of taking on or discharging passengers; provided, however, that where the righthand lane or parking lane is occupied by parked motor vehicles said trolley coaches or motor buses shall pull to the right as far as possible under the circumstances then existing.'

It will be noticed that the defendant violated the provision of the ordinance just quoted when, immediately preceding the fall of Mrs. Smith, it stopped its bus in the intersection of Park Place any Vista Avenue.

The conditions under which violation of an ordinance will establish liability as negligence per se are that (1) the violation be the proximate cause of plaintiff's injuries, Rose v. Portland Traction Co., 219 Or. 1, 341 P.2d 125, 346 P.2d 375; Birks v. East Side Transfer Co., 194 Or. 7, 241 P.2d 120; Staples v. Senders, 164 Or. 244, 96 P.2d 215, 101 P.2d 232; Myrtle Point Transportation Co. v. Port of Coquille River, 86 Or. 311, 168 P. 625, (2) plaintiff be within the class of persons intended to be protected by the legislation, Hillman v. Northern Wasco County People's Utility District, 213 Or. 264, 323 P.2d 664, (3) the accident be within the area of risk intended to be avoided by the ordinance, Snyder v. Prairie Logging Co., Inc., 207 Or. 572, 298 P.2d 180. Prosser on Torts, p. 152, puts it this way:

'The standard of conduct of a reasonable man may be established by a statute or ordinance. The violation of such a legislative enactment may be negligence in itself if:

'(a) The plaintiff is one of a class of persons whom the statute was intended to protect, and

'(b) The harm which has occurred is of the type which it was intended to prevent.'

The question of whether the fall of an alighting passenger is within the area of risk intended to be avoided by ordinances requiring buses to discharge passengers at the curb has come before courts several times. Ordinances similar to Portland's have been construed by other courts in cases in which a passenger was injured while alighting from a common carrier bus which stopped away from the curb. The decisions hold that the risk of falling was not intended to be guarded against by the requirement that the bus pull up to the curb. The ordinance's purposes are to protect passengers from injury by cars that might undertake to pass between the bus and the curb and also to facilitate the movement of traffic. No cases to the contrary have been found.

In Louisville Transit Co. v. Jones, Ky., 291 S.W.2d 49, 50, the court stated:

'* * * The purpose of the ordinance as a part of the city's traffic code was to expedite traffic, to prevent stopped buses from blocking the roadway any more than necessary, and possibly to protect alighting passengers from other vehicular traffic. It might be contended that the ordinance was also intended to assure discharged passengers a safe place to alight and that a loading platform outside the curb line of the roadway was the safest place attainable. We do not believe this latter contention is within the purview of the ordinance, for the driver still could stop his bus to discharge passengers at a regularly established stop even if parked vehicles or other conditions prevented him from sidling his bus into the curb in compliance with the ordinance. He was not required in such circumstances to carry his passengers beyond their destination to the next regular stop where conditions permitted him to comply with the ordinance. When a regular coach stop was blocked for any reason, he, nevertheless, could stop to discharge his passengers if he exercised the highest degree of care and skill in protecting the safety of his passengers as they alighted from the bus. * * * It is our conclusion, therefore, that violation of the ordinance was improperly injected into this case because the risk here involved--slipping or falling after alighting from the bus--was not a risk which the ordinance was designed to protect against * * *.'

Mills v. City of Cleveland, 97 Ohio App. 78, 117 N.E.2d 471, 474, 475, held:

'The ordinance herein is, among other things, designed for the purpose of preventing traffic congestion and to provide for the free and safe flow of traffic upon the streets of the city of Cleveland. The ordinance was not enacted for the purpose of providing a passenger the right to step onto the curb when leaving the bus, since, by its terms, it permits a discharge of passengers at a point more than one foot from the curb when it is impossible to get that close, and, too, it also permits angle parking upon certain streets.'

Reque v. Milwaukee & Suburban Transport Corp., 7 Wis.2d 111, 114a, 95 N.W.2d 752, 97 N.W.2d 182, states:

'Such statute was enacted as a rule of the road for the purpose of insuring sufficient adequate usable highway space to vehicles traveling in the same direction as was the stopped or parked vehicle, and to prevent a collision occurring between such moving vehicle and the one stopped or parked. By the observance of the statute on the part of the operator of the stopped...