Watts v. Colonial Stages Co.

• Decision Date: 17 March 1932
• Docket Number: 21774.
• Citation: 163 S.E. 523,45 Ga.App. 115
• Parties: WATTS v. COLONIAL STAGES CO.
• Court: Georgia Court of Appeals

163 S.E. 523

45 Ga.App. 115

WATTS v. COLONIAL STAGES CO.

No. 21774.

Court of Appeals of Georgia, Second Division

March 17, 1932

Syllabus by the Court.

Petition alleging that door indicated by bus driver as location of toilet was opening to basement and that plaintiff, a passenger, fell downstairs, held to show carrier's negligence.

Plaintiff's negligence constitutes matter for defense unless affirmatively shown by petition.

Petition for injuries sustained by falling downstairs when misdirected by bus driver as to location of toilet held not to show plaintiff's negligence as matter of law.

1. In this suit for damages for personal injuries sustained by the plaintiff while traveling as a passenger on a bus operated by the defendant as a common carrier, in which the plaintiff alleged that, when the bus stopped in the nighttime at a certain city en route, he stated to the driver that he desired to answer a call of nature and inquired as to the location of a toilet, and that the driver replied with the statement, "There's one right there," pointing to an open door in a nearby building, but that the door instead of being an entrance to a toilet, was an opening to the basement of the building, and that on entering the door the plaintiff was thrown down a set of concrete steps leading from the entrance to the floor of the basement below, the petition was not subject to general demurrer upon the ground that it failed to show any negligence on the part of the defendant with respect to the plaintiff's safety.

2. Negligence or want of due care on the part of the plaintiff or the failure by him to avoid the consequences of the defendant's negligence after it was or should have been apprehended, would constitute matter for defense to be pleaded by the defendant, unless affirmatively shown by the allegations of the petition. Under the circumstances disclosed by the petition, it cannot be held as a matter of law that a recovery should be denied because of fault or negligence on the part of the plaintiff.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by J. W. Watts against the Colonial Stages Company. Judgment of dismissal was entered, and plaintiff brings error.

Reversed.

Poole & Fraser, of Atlanta, for plaintiff in error.

Welborn B. Cody and D. F. McClatchey, Jr., both of Atlanta, for defendant in error.

BELL J. (after stating the foregoing facts).

1. Does the petition show negligence on the part of the defendant with respect to the plaintiff? The conversation between the plaintiff and the defendant's agent in Atlanta who sold the ticket may or may not have amounted to a contractual undertaking by the defendant to furnish the plaintiff with accommodations in the way of toilets suitable to his requirements during the course of the transportation. Cf. Central Railroad & Banking Co. v. Roberts, 91 Ga. 513 (2), 18 S.E. 315; Atkinson v. Southern Ry. Co., 114 Ga. 146, 39 S.E. 888, 55 L.R.A. 223; Mooneyham v Nashville, Chattanooga & St. L. Ry. CO., 33 Ga.App. 406 (5), 126 S.E. 736. Whatever may be the proper answer to this question, it is our opinion that the allegations are sufficient to show a breach of duty by the defendant with regard to the plaintiff's safety in relation to the transaction at Cartersville.

The plaintiff did not cease to be a passenger merely because he temporarily left the bus for the purpose of resorting to a nearby toilet in response to a call of nature. If a toilet was not provided in the bus itself, the carrier must have known that it would be necessary on occasion for a passenger on a long journey to step aside for the purpose stated. Whether or not the point at which the bus stopped should be considered as an intermediate station, the rule as to the duty owing to a passenger at such stations would seem to be analogous. As a general rule, a passenger does not lose his character as such by alighting temporarily at an intermediate station for any reasonable and usual purpose, where he does so with the express or implied consent of the carrier. Riley v. Wrightsville & T. R. Co., 133 Ga. 413, 65 S.E. 890, 24 L.R.A. (N. S.) 379, 18 Ann.Cas. 208; Ala. Great Sou. Ry. Co. v. Coggins, 88 F. 455 (1, 2), 32 C.C.A. 1; Texas & Pacific Ry. Co. v. Stewart, 228 U.S. 357 (2), 362, 33 S.Ct. 548, 57 L.Ed. 879; 10 C.J. 628, § 1051.

The building which the plaintiff entered may not have been the property of the defendant, and thus the plaintiff may have gone beyond the premises of the carrier. The carrier's agent, however, pointed out the place as a toilet and assumed to grant authority for its use. The plaintiff did not exceed the limits of the invitation, nor pass beyond the apparent sphere of the defendant's protection. While the defendant did not owe the duty of extraordinary care in the transaction in question, it was nevertheless bound to exercise ordinary care to protect the plaintiff from danger....