White v. . Chappell , 219 N.C. 652 ( 1941 )

WiNBORNE, J.

While appellant presents other exceptive assignments which are worthy of serious reflections, those pertaining to the refusal of the trial court to grant its motions, aptly made, for judgment as in case of nonsuit, and to give peremptory instruction for negative answer to issue of negligence are decisive of this appeal. When taken in the light most favorable to plaintiff, the evidence as to actionable negligence of defendant, Norfolk Southern Bus Corporation, the appellant, is in our opinion insufficient to take the case to the jury and to support the verdict against it, and we so hold.

In an action for recovery of damages for wrongful death, resulting from alleged actionable negligence, the plaintiff must show: First, that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed plaintiff’s intestate under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury which produced the death, — a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed. Whitt v. Rand, 187 N. C., 805, 123 S. E., 84; Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326; Mills v. Moore, ante 25, 12 S. E. (2d), 661, and cases cited.

Generally where the relation of carrier and passenger exists the carrier owes to the passengers the highest degree of care for their safety so far as is consistent with the practical operation and conduct of its business. But, the liability of the carrier for injuries to a passenger is based on negligence. The carrier is not an insurer of the safety of passengers. Hollingsworth v. Skelding, 142 N. C., 246, 55 S. E., 212; Marable v. R. R., 142 N. C., 557, 55 S. E., 355; Briggs v. Traction Co., 147 N. C., 389, 61 S. E., 373; Mills v. R. R., 172 N. C., 266, 90 S. E., 221. See, also, Annotations 4 A. L. R., 1500; 31 A. L. R., 1202; 45 A. L. R., 297; 69 A. L. R., 980; 96 A. L. R., 727.

Ordinarily, when the relationship of carrier and passenger is created it continues until the journey, expressly or impliedly, contracted for has been concluded, unless the passenger sooner terminates or relinquishes his right as such. 13 O. J. S., 1075, Carriers, 566; Wallace v. R. R., 174 N. C., 171, 93 S. E., 731. In either event, whether the journey so contracted for has been concluded, or sooner terminated or his right thereto relinquished by the passenger^ such relationship ordinarily ends when the passenger has alighted from the bus in a place of safety on the street or highway! 13 O. J. S., 1074, Carriers, section 565; Waldron v. Southwestern Bus Co., 42 Ohio App., 549, 182 N. E., 596; Roden v. Connecticut Co., 113 Conn., 408, 155 A., 721; Lewis v. Pacific Greyhound Bus Co., 147 Ore., 588, 34 P. (2d), 616, 96 A. L. R., 718; Annotations 31 A. L. R., 572, and 96 A. L. R., 727, where cases are assembled. See, also, Cooke v. Elk Coach Line (Del.), 180 A., 782.

In the present ease when the plaintiff’s intestate and his mother, in whose care he was traveling, entered the bus of defendant Norfolk Southern Bus Corporation at Edenton with tickets for their transportation thereon to Winfall, the relation between the Bus Corporation and them became that of carrier and passengers. Hence, the legal duty which defendant Bus Corporation, as a common carrier of passengers, owed to them arose out of the relationship of carrier and passenger, and ended when the passenger alighted in a place of safety. See Annotations 96 A. L. B., 727.

In this State there are no cases dealing with the subject of the duty owed by the owner of a bus, a common carrier of passengers, to alighting passengers. But, there are two cases which treat the question of the duty of a street car-company to alighting passengers: Wood v. Public-Service Corp., 174 N. C., 697, 94 S. E., 459; Loggins v. Utilities Co., 181 N. C.. 221, 106 S. E., 822.

While in these cases the factual situations are different from that in the present case and they are/ therefore, distinguishable from the present case, the Court there recognized that the weight of authority is that the relation of carrier and passenger ceases when the passenger has safely alighted. In the Loggins case, supra, where plaintiff was struck ■ after alighting in the lane of traffic, it is said: “By the clear weight of authority the relation of passenger and carrier ordinarily ends when the passenger safely steps from a street car to the street. He then becomes a pedestrian on the public highway, and the carrier is not responsible for his safe passage from the street to the sidewalk; for once safely landed in the street, his rights as a passenger cease,” citing Wood v. Public-Service Corp., supra, and other cases. But, continuing, the Court said: “Obviously there is a difference between a safe landing and a landing in safety. The one has reference to the act of the passenger in stepping from the car to the street, the other to the condition in which he finds himself immediately after accomplishing this act.

“We think a fair statement of the rule would be to say that a passenger, on alighting from a street ear at the end of his journey, loses his status as a passenger when he has stepped from the car to a place of safety on the street or on the highway. The question should not be made to depend entirely upon the number of steps which the passenger may take on leaving the car, but rather the circumstances and conditions under which he alights. He is entitled to be discharged in a proper manner and at a time and place reasonably safe for that purpose.” The ruling there that the duty of carrier to an alighting passenger extends not only to “a safe landing” but to “a landing in safety” is the limit to which any of the courts have carried the principle, even where the passenger alights on the traveled portion of the street or highway.

If the case in hand be tested by that standard all the evidence clearly shows that defendant Bus Corporation fully performed its duty to plaintiff’s intestate in both respects. He was not injured in alighting or at the place of landing, but at a point some distance away to which he had moved after landing in safety. The courts in other jurisdictions have applied the principle to cases involving the duty of common carriers of passengers by means of buses.

In Waldron v. Bus Co., supra, plaintiff, a passenger having alighted from an eastbound bus in safety on the southerly side of the pavement, although on the corner of an intersecting street opposite the regular stopping place, walked west to the rear of the bus, while the bus began to move on, and started north across the highway when she was struck by a westbound ear. The Ohio Court of Appeals, in opinión by Richards, J., held that the defendant owed to her, while she was a passenger, a high degree of care for her safety, but that the relationship of carrier and passenger terminated when she alighted from the bus in a place of safety, and that the proximate cause of her subsequent injury was either her own negligence in walking in front of an approaching automobile or the negligence of the operator of the automobile, and “the defendant was in no sense responsible for the injury resulting therefrom, — haying discharged the passenger in a place of safety, there could he no causal connection between that act and the injury which she suffered.”

In the Roden case, supra, the plaintiff, a boy seven years old, rode as a passenger in the bus of defendant from New Britain to the end of its run on Farmington Avenue. The driver drove the bus toward the left. The only door was on the right side of the bus, the side toward the macadam. The driver opened the door and the boy descended the steps to go to his home on the opposite side of the street. He was struck by an automobile proceeding in the same direction as the bus. The Supreme Court of Errors of Connecticut, speaking through Maltbie, O. J., said: “The duty of a common carrier of passengers includes an obligation to furnish them a safe place in which to alight, as far as that place is provided by it or is affected or conditioned by the movement of the vehicle, and that duty is only satisfied if it exercises the highest degree of care and skill which reasonably may be expected of intelligent and prudent persons engaged in such a business, in view of the instrumentalities employed and the dangers naturally to be apprehended. . . . An automobile bus is able to move or stop in the street at the will of its driver, and the safety of the place he offers its passengers to alight may be affected or conditioned by the passing traffic. . . . The care to be exercised toward a young child traveling by himself must be proportioned to the degree of danger inherent in his youth and inexperience. . . . When, however, the duty of the carrier to provide a safe place to alight has been fulfilled and the passenger has left the vehicle, it ceases to owe to him any duty other than that which it owes to any person coming within the range of its activities, not to do him injury by a failure to exercise reasonable care.” The last two sentences read together are significant. And, continuing, the Court said: “In the instant case the driver had abundant opportunity to let the plaintiff out at the side of the road, off the highway, in a place of safety. Yet, instead of doing so, he chose to invite him to alight upon the macadam of the street at a time when the jury might have found that the automobiles were approaching in such a way as to endanger him as he stepped upon the pavement and when, had the driver looked with any care to the rear, he must have seen them.”

And, in Lewis v. Pacific Greyhound Lines, supra, a case strikingly similar to case at bar, the plaintiff, a man, was discharged as a passenger on the right side of the bus. He went out the front door on the gravel shoulder of the pavement. After having alighted in safety, he walked thirty-five feet to the rear and halfway across the pavement, which was sixteen feet wide, when he was struck by a passing automobile. The opinion of the Supreme Court of Oregon, by Belt, J., is epitomized in the third headnote, which reads: “A bus company is as a matter of law not guilty of any breach of duty to a passenger in setting him down at night, without warning of danger, at a place on the side of the road where he was out of danger from vehicular trafile, though such place was on the opposite side of the road from a restaurant where it maintained an agency for the sale of tickets, and which bore a sign marking it as a bus depot, in walking toward which, across the highway, the passenger was struck by an automobile, though he supposed, in view of the fact that he boarded a bus on the fill in front of the restaurant on the previous day, that he was being set down there.” And, continuing, the Court uses this language: “Assuming, but not conceding, that the defendant bus company was negligent in failing to discharge the plaintiff as a passenger on the west side of the highway in front of the restaurant or barbecue stand, it is believed that such negligence has no causal connection with the injury sustained. . . . The proximate cause of the injuries of which plaintiff complains was either the negligence of the driver of the car which struck him, or his own negligence in failing to exercise due care to avoid being injured while undertaking to cross the highway.”

In applying these principles, a fair appraisal of the case in hand requires that these facts be borne in mind: (1) The defendant Bus Corporation is engaged in the business of a common carrier of passengers by means of interurban buses operated over a duly franchised route upon the highway from Raleigh, North Carolina, to Norfolk, Virginia, having scheduled intermediate stops at Edenton, Hertford, and other cities and towns along the way. (2) The mother of intestate, in whose care he was traveling, purchased, and they were traveling on tickets for their transportation, upon a bus of defendant Bus Corporation from Edenton to Winfall in North Carolina. (3) At the request of mother of intestate the bus stopped on the highway before reaching Winfall for intestate and his mother to alight at a point designated by her. (4) The intestate and his mother alighted upon the right shoulder of the road out of the line of and danger from traffic upon the highway in the light of all the evidence in the case.

When so appraised there is lacking any evidence of contractual relationship between defendant Bus Corporation and plaintiff’s intestate by which duty is imposed upon the former, as carrier, to do more than provide for the intestate, its passenger, a safe landing and a landing in safety.

Ill brief, for plaintiff it is virtually conceded tbat if plaintiff’s intestate bad remained in tlie place in which he alighted, he would have been perfectly safe from the danger of traffic upon the highway. But it is insisted that the destination of his intestate was “across the highway at his grandmother’s home.” While it appears from the evidence that such was the ultimate destination of intestate and his mother, yet as regards the obligation of defendant Bus Corporation there is no evidence that it either expressly or impliedly agreed, or from which it may be inferred that it agreed to transport them to the home of the grandmother. On the contrary, all the evidence tends to show that the Bus Corporation was carrying on the business of common carrier over the highway between certain designated points with certain scheduled stops along the way. Hence, “to stop at the second house on the other side ... of Major Loomis’ office, this side of Winfall” means no more than to stop on the highway at that point. It was not a regular stop, but was made patently as an accommodation to plaintiff’s intestate and his mother, at a point selected by her and with which she and he, a bright and intelligent boy, were familiar.

However, the plaintiff insists that the duty owed by defendant Bus Corporation to his intestate continued until he was safely across the highway, and for support he relies upon these cases in other jurisdictions: Draper v. Robinson (Texas), 106 S. W. (2d), 825, modified upon other points in 127 S. W. (2d), 191; Taylor v. Patterson’s Adm’r., 272 Ky., 415, 114 S. W. (2d), 488; Mackenheimer v. Falknor, 144 Wash., 27, 255 P., 1031; Gazaway v. Nicholson (Ga.), 5 S. E. (2d), 391; Stuckwich v. Hagon Corp. (Pa.), 175 A., 381; Shannon v. Central Gaither Union School Dist., 133 Cal. App., 124, 23 P. (2d), 769; Phillips v. Hardgrove (Wash.), 296 P., 559.

An examination reveals that each of these cases relates to the duty owed by the operator of a school bus in transporting children from their homes to school and from school to their homes — and are clearly distinguishable from the case in hand. For example, the case of Taylor v. Patterson’s Adm’r., supra, sets forth the distinguishing features. In this case Taylor was owner and operator of a jitney bus and a public carrier of passengers. The transportation of his passenger, Billy Patterson, a Negro hoy less than seven years of age, from his home to the school in the morning and from the school to his home in the afternoon was for an agreed fee. In the afternoon of day in question Taylor received the boy for transportation from school to his home on Greenup Avenue, a busy and much used street, and discharged him upon the sidewalk on the opposite side of street from his home, when neither his mother nor any other person was present to receive him, and from which point to reach his home he must of necessity cross the street. The danger in so doing was obvious and apparent and known to Taylor. Upon these unchallenged facts the Court, in asking the question, “Did Taylor, the operator of the bus, deliver the boy at a safe place ?” said: “It must be kept in mind that this jitney bus was not such a vehicle for transporting passengers for hire that is operated upon a permanent track as a passenger train or a street car, nor does it run from one certain point to another, nor does it have any special platform or place to discharge passengers, but, on the other hand Taylor in operating his jitney bus could stop at any place, where it might be necessary or safe in fulfilling his duty to the passenger as a public carrier.” And, continuing, the Court said “The operator of a taxi who permits a passenger to alight from a car at a place not ordinarily used in discharging passengers and where many vehicles are accustomed to pass is not bound to warn the passengers of the danger of passing trafile nor to protect him from such danger after he has left the car . . . but under his special contract Taylor’s duty as a carrier continued and required that he exercise the highest degree of care for the boy’s safety until he was safely across Greenup Avenue to the side where his mother’s home was located where he ivas out of danger of injury of the passing traffic.”

Plaintiff further relies upon Roden v. Connecticut Co. (Conn.), supra. Yet we are unable to find in it support for his position. While the Court states that the care to be exercised to a young child traveling alone must be apportioned to the degree of danger inherent in his youth and inexperience, it says, “When, however, the duty of the carrier to provide a safe place to alight has been fulfilled and the passenger has left the vehicle, it ceases to owe to him any duty other than that which it owes to any person coming within the range of its activities, not to do him injury by a failure to exercise reasonable care.”

Plaintiff further contends that the porter having lifted the plaintiff’s intestate from the bus to the shoulder of the road before his mother alighted, it became his duty as representative of defendant Bus Corporation to retain the child in the custody he had assumed until the child’s mother appeared.

In this connection, the rule is universal that ordinarily there is no duty resting upon a carrier of passengers to assist a passenger in boarding or alighting from its train or car or bus. 55 A. L. R. Annotations; Morarity v. Traction Co., 154 N. C., 586, 70 S. E., 938; Graham v. R. R., 174 N. C., 1, 93 S. E., 428.

Furthermore, the primary duty of caring for a child of tender years is on the parents or their representative who has the immediate custody of the child. Therefore, where such child is traveling on a bus in the care of his parent, the owner of the bus, that is, the carrier, through its employees, has the right to presume and to rely on the presumption that the parent will take such care of the child as the natural love of the parent would prompt him or her to exercise under the circumstances. 13 C. J. S., 1291, Carriers, sec. 694; St. Louis, etc., R. Co. v. Rexroad, 59 Ark., 180, 26 S. W., 1037.

However, the carrier is not entitled to act upon such presumption where the carrier’s employees who are engaged in the operation of its bus know, or, in the exercise of reasonable care and diligence should know, that such child is or will be exposed to danger or injuries by acts or negligence of the carrier’s employees.

In the instant case there is no evidence that plaintiff’s intestate did anything from the time he boarded the bus until the bus stopped at the place designated by his mother except to sit in the seat by his mother. Nor is there any evidence that, in leaving his seat after the bus stopped, and in coming to the front to alight, there was anything in his manner to indicate that he was not acting with the consent, approval and confidence of his mother. Admittedly, she said nothing to put the driver and porter on notice that the boy required restraint. Although she knew the highway was much used, and knew that she and her son were going to his grandmother’s on the west side of the highway, apparently she did not anticipate that he would run ahead in the dark and leave her. Should the defendant have exercised more foresight ? Under such circumstances the employees of the Bus Corporation had the right to presume and to act upon the presumption that the boy was acting with the approval of his mother, from whose side he came and who followed to the door of the bus. Moreover, the Bus Corporation, having performed its duty to the intestate as an alighting passenger, was not responsible for dangers incident to intervening causes.

Finally, in the light of all the evidence we are unable to perceive any causal relation between the failure of the driver of the bus to give signal for stopping or to dim the lights on the bus or in stopping on the pavement to the right of the center of the highway, and the injury and death of intestate.

As the jury has exonerated the driver of the death ear, the case resolves itself into one of those most unfortunate and deplorable accidents for which none of defendants is responsible.

The judgment is

Reversed.