Pantuso v. Pittsburgh Motor Coach Co. , 360 Pa. 464 ( 1948 )

Defendant appeals from judgments for the minor plaintiff and his mother in their suit for damages for personal injury suffered by the minor. Defendant's only complaint is that its motion for judgment n. o. v. was refused. If there is evidence from which the jury could find negligence, the judgments must be affirmed. As the plaintiffs have the verdict the evidence and inferences from it must now be taken in the sense most favorable to plaintiffs. So examined, the jury may have found the facts now to be stated. At about 1:15 on a Saturday afternoon, January 22, 1944, the minor plaintiff, aged five and a half years, accompanying John Parker, aged fifteen or sixteen, became a passenger on defendant's bus. The route traversed by the bus in the City of Pittsburgh included O'Hara street to Thackeray street, thence to Fifth Avenue, the "end of the run." The bus was crowded; the majority of the passengers were children. A regular stop was at the corner of O'Hara and Thackeray streets where the bus would make a right turn into Thackeray street. The regular stopping place was at the curb but on this day cars were parked along the curb so that the bus could not get nearer than within six or eight feet of the curb. Instead of stopping the bus so that it stood on O'Hara street alone, the bus driver testified, ". . . in order to prevent cars passing me on the right I cut the right end in on Thackeray street," the rear end being ten or twelve feet away from the curb, and the front end six or eight feet from it. While the bus was in that position, partly turned from one street into the other, passengers, were discharged. This stopping place was only a short distance from Fifth Avenue where, as the bus driver testified, ". . . the majority of them would get off at Fifth and Thackeray" not far from a "movie" theatre. The evidence is not as clear as it might be to determine whether the minor plaintiff and John Parker^* stepped off the bus to allow others to alight, intending to get on again and proceed to Fifth Avenue, or whether they got off erroneously thinking they had reached the end of the run. At all events, they alighted with other passengers; they did not pass to the curb. The bus doors were closed leaving the two boys in the street, the older one knocking at the closed doors to attract the attention of the bus driver. The driver started his bus to complete the turn into Thackeray street and, while doing so, the right front wheel passed over the minor plaintiff's foot and seriously injured him. The front part of the bus was then still crowded with passengers to such an extent that the driver could not see to his right to determine whether it was safe to proceed. He testified that a passenger got on the bus ". . . and after this man got on he said it was all right, so I closed the doors and started out very slowly as I was watching these soldiers in front of me, I didn't want any of them to step out in front of me, and I was slowly making the turn when I heard someone shout, 'Stop,' so I stopped . . ." In cross examination he said that four or five passengers were standing in the front of the bus on his right side, so that he "couldn't see the door for the people." The bus traveled from three to six feet from the time it started until it stopped, during part of which the boys walked beside it, the older one knocking on the door.

The jury could find, as it did, that it was the duty of the driver not to start his bus until he had seen that the minor plaintiff-passenger had walked to the curb from the place where he was required to alight (compare Vogel v. Stupi et al.,357 Pa. 253, 53 A.2d 542 [1947] or had otherwise passed from the possible path of the bus. Dr. Fetter, the only eye witness, testified that "the boys were standing between the curb and the bus." Dr. Fetter was very familiar with the location in which the accident happened and was standing only four or five feet from the bus. He testified "He [the bus driver] had only moved several feet, I would say no more than a yard or a yard and a half, four or five feet, maybe six, when I noticed this bigger boy and a small boy; the big boy had the small boy by the hand and it seemed to me they were trying to get back on the bus. The bigger boy was rapping on the side of the door. The door happens to be in front of the wheel. I believe that type of bus has the motor in the rear; I don't know, but they were trying to get back on the bus, it seemed to me, and the right front wheel, it was going around that turn, and the little boy just got his foot and it ran right over it."

The standard of a bus driver's duty with respect to a minor passenger was recently considered in Vogel v. Stupi et al.,357 Pa. 253, A.2d 542 (1947), in which a common carrier of passengers was held liable for injuries to a child passenger discharged on a public highway at a place found by the jury not to have been reasonably safe in the circumstances. The following rule was quoted: "In respect of a passenger who is a minor, the carrier is bound to exercise a high degree of care, and, as to a young child, it has been asserted that the carrier owes the highest practical degree of care on the part of its employees in carrying out the contract of carriage, and that the age of such child is a factor which must be considered in the measurement of such care." InO'Malley v. Laurel Line Bus Co., 311 Pa. 251, 166 A. 868 (1933), where a bus stopped to allow a passenger to alight at an unsafe place, the rule was stated thus: " 'A common carrier for hire owes to its passengers the highest degree of care and diligence in carrying them to their destination and [in] enabling them to alight safely' (Hughes v. Pittsburgh Transportation Co., 300 Pa. 55) and to avoid any possible danger while doing so: Lyons v. Pitts. Rys. Co., 301 Pa. 499. It is the duty of a carrier of passengers to set them down at the terminus of their journey, and to afford them a sufficient time to alight in safety."

Judgment n.o.v. can only be entered in a clear case. It was the duty of the jury to say whether in the circumstances the bus driver acted reasonably in starting his bus when he couldn't see what the conditions immediately outside the door were. He knew that children had just alighted in the street away from the curb in traffic conditions which confronted him. The jury might very properly say that he should not have relied, as he testified he did, on a man's making the ambiguous statement "all clear," but should himself have looked where he was about to drive his bus. By "all clear" the man who was standing in the bus may have meant that the driver could close the doors without injuring the standing passengers.

Duffy v. P. R. T. Co., 291 Pa. 564, 140 A. 496 (1928), andFittipaldi v. P. R. T. Co., 107 Pa. Super. 385, 163 A. 397 (1932), relied on by appellant, were cases of adult contributory negligence; the court could not declare this minor plaintiff guilty of contributory negligence.

Judgments affirmed.

^* This boy was not called as a witness; it was said that he was in the army.