Wynn v. Gandy

• Decision Date: 08 June 1938
• Citation: 197 S.E. 527
• Court: Virginia Supreme Court
• Parties: WYNN. v. GANDY.

197 S.E. 527

WYNN.

v.GANDY.

Supreme Court of Appeals of Virginia.

June 8, 1938.

Error to Circuit Court, Elizabeth City County; John Weymouth, Judge.

Action by Wilbert J. Gandy, Jr., by his father as next friend, against W. T. Wynn to recover for injuries sustained when run over by a school bus driven by the defendant. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Argued before HOLT, HUDGINS, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Hughes, Little & Seawell, of Norfolk, for plaintiff in error.

Frank A. Kearney, of Phoebus, for defendant in error.

BROWNING, Justice.

The defendant in the trial court, who is the plaintiff in error here, was the driver of a school bus which was connected with the George Wythe public school in Elizabeth City county, Virginia. On the 5th day of January 1937, he drove his bus from a filling station, where he had had it serviced, toward the school building for the purpose of loading it with children, whose homes were their destinations. As he was proceeding slowly along the street in front of his own home, which is opposite the entrance to the school building, school children were crowding around and running after the moving bus for the purpose of getting on it. The plaintiff was crowded and shoved by other children which caused him to try to catch a handle on the bus to save himself, but he failed in this effort and fell and the right rear wheel passed over him, injuring him to such extent that he died a short while after the trial of his case.

This action was instituted against the defendant by the father of the plaintiff, as his next friend, he being an infant who became 13 years old shortly after the accident.

The jury rendered a verdict for the plaintiff, awarding him damages in the sum of $10,000, which was confirmed by the judgment of the trial court. The plaintiff, of course, is entitled to have the facts, where there is conflict, stated and accepted in the light most favorable to himself, which will accord with the testimony elicited from his witnesses.

The plaintiff and Mrs. Bruce McIntyre, who happened to be at the school on the afternoon in question for the purpose of taking her two children, who were students there, to their home, testified as to the plaintiff being shoved and crowded, the latter saying on her examination in chief as follows:

"Well, when Mr. Wynn drove up, he was driving very slowly, very slow, and when he got there the children practically had all gotten on the right-hand side ofthe bus, and when Mr. Wynn passed the children they were all on that side, practically, and just a few on this side. (Indicating.) And then I saw this crowd just pushing, they were pushing terribly, and I saw three children go down, --two girls and this boy, but I didn't know it was Wilbert at that time; and then I saw this boy's legs lying right in front of the back wheels of the bus, and I knew they went over him, and as they did, I jumped out of the car, and a second or so Mr. Wynn brought the bus to a standstill. I went to the boy, and some of them helped me take the boy up, and I got as far as the running board and Mr. Wynn helped me put him in my car, and Mr. Wynn asked me if I would take him to the hospital."

The defendant frankly admitted that just such a condition as that detailed by Mrs. McIntyre occurred almost every day.

The facts, as we have to accept them, justified the statement that there are a number of major circumstances which stand out boldly in this case and induce the conclusion that the issues here are for the determination of the jury. These circumstances are:

1st. The defendant was admittedly late in arriving at the school with the bus.

2nd. The school had been dismissed for the day a sufficient length of time for the children to wander and become scattered. They were milling around.

3rd. The bus was sufficiently large to accommodate and did accommodate from 90-odd to 112 children, ranging in age from 7 to 15 years, which heightened the danger of its passage along a way that was more or less crowded with children of rather immature minds.

4th. The defendant, on the afternoon in question, changed his method of approaching the school building for the purpose of taking on his passengers. His practice was to stop in front of the school and not on the opposite side of the street. The presence of the bus proceeding slowly on the opposite side of the street was a lure to the children. Their childish impulses caused a portion of them to go across the street so that, in the language of some of the witnesses, they were on both sides of the street and in the street, so that it may be said that the immediate area was alive with running, rollicking and excited children in a race as to which could get on the bus first.

5th. It had very recently rained and naturally the street presented a condition which was conducive to a person losing his foothold.

6th. The defendant testified that, occupying the driver's seat, he could not see persons at either side after the front of the bus had passed such...