Lewis v. Pacific Greyhound Lines

Defendant is a public carrier of passengers for hire, operating an auto stage line generally throughout the state of Oregon. On January 10, 1933, plaintiff purchased a ticket at Woodburn for passage from that place to Hubbard. At approximately 5:15 p.m. of said day, at Hubbard, defendant stopped its auto stage, upon which plaintiff was riding as a passenger, at a point on the easterly side of the highway. Defendant's usual stopping point at Hubbard was in front of its ticket office, which is upon the westerly side of the highway opposite to the point at which its stage was stopped on the occasion in suit. It was dark when plaintiff alighted from defendant's stage. On the previous day, plaintiff had taken one of defendant's stages at Hubbard for passage to Woodburn, and on that occasion defendant's stage had stopped in front of its ticket office at Hubbard on the westerly side of the highway.

The record discloses a disclaimer on the part of defendant with reference to any control either for the purpose of a depot or for depot grounds over the premises where its tickets are sold. Therefore, the writer does not assume that its usual stopping place at Hubbard was under its control for such purposes. The question is confined to the probable effect on a reasonably prudent person of the course taken by the defendant on the day prior to the accident in suit, in selling him a ticket at that place, in stopping there to receive plaintiff as a passenger, and in stopping across the street therefrom on the night of the accident and discharging plaintiff in the dark without any warning, as plaintiff claims, of its having stopped at a different place than on the day before, and where it was necessary for plaintiff to cross a publicly traveled highway.

We cannot concur with defendent, however, in its contention that the jury should have been instructed that there was no evidence that defendant's stage lines had any control over the premises or grounds where the tickets were sold. Use of the grounds by defendant, as well as the display of defendant's advertising sign and the sale of tickets, are circumstances which the jury had a right to consider in that regard.

Plaintiff says that on the evening of the accident, as he left defendant's stage, he thought that it had stopped immediately in front of said ticket office.

Plaintiff walked to the rear of defendant's stage, turned, passed the rear thereof, and, in attempting to proceed further, was struck and injured by an automobile then being driven southerly on the public highway by one William J. Keen.

Errors are assigned in the refusal of the trial court to grant defendant's motions for involuntary nonsuit, and for a directed verdict in favor of defendant, and also in the refusal to give, and in the modification of, certain instructions.

In support of defendant's motions for nonsuit and directed verdict, it is argued that the relationship of passenger and carrier terminated when plaintiff alighted upon the ground where defendant's auto stage had stopped; that thereafter the only duty defendant owed plaintiff was that of ordinary care; and no breach of such duty was shown. In support of the course taken by the trial court in denying said motion, it is argued that defendant did not discharge plaintiff from its auto stage in a safe place, and that the duty of a carrier of passengers for hire toward such passengers continues until they are so discharged.

The question thus presented is whether we can declare, as a matter of law, that the duty owing by a carrier to its passengers to exercise the highest possible degree of care for their safety has been performed by defendant when plaintiff is permitted to alight in the dark by the roadside at a place across a publicly traveled highway from the ticket office of defendant where on the day previous he had been permitted to enter another of defendant's stages, and where plaintiff was not warned notified nor advised that he would have to cross the highway to reach the usual stopping place.

The driver of the stage says that, pursuant to a rule of the company requiring him to do so, he told plaintiff to watch his step. Plaintiff says that he did not hear any statement at all by the driver. A witness, called by defendant, recounted the circumstances attendant upon plaintiff leaving the stage, but did not relate that any such warning was given by the driver. Whether such or any warning was given became a question of fact. The writer thinks that the failure, if any, on the part of the driver to give such warning would be evidence tending to show negligence on the driver's part.

As to what constitutes a compliance by a carrier with the duty to observe the highest degree of care for the safety of its passengers, each case must depend upon its own facts and circumstances. While the writer thinks that in the case at bar there is evidence tending to disclose that defendant did not exercise such a degree of care toward plaintiff in reference to the place of his discharge from the stage and the circumstances attending it, yet he would not hold, as a matter of law, that a compliance with that duty requires the carrier in all cases to warn its passengers of the presence of traffic dangers and perils. If, obviously and manifestly, they are known to the carrier and not known to, nor by reasonable diligence discoverable by, the passenger, such warning should be given. The writer thinks that in the case at bar no error was committed by the trial judge in submitting that question to the jury.

Defendant cites Smith v. City Railway Co., 29 Or. 539 (46 P. 136). There, the defendant was operating an electric railway system in Portland. The accident occurred in the daytime. The plaintiff was injured by a car going east, as she attempted to cross the railway track on the south side of Morrison street, after having alighted from and walked around the rear of a car which had stopped on its westerly course and was upon the track on the north side of said street. The facts of that case differ so widely from those of the case at bar that we deem it inapplicable.

Defendant also cites Finseth v. Suburban Railway Co., 32 Or. 1 (51 P. 84, 39 L.R.A. 517). In that case, this court held that where defendant, a street railway company, had erected a temporary sidewalk over a flooded street for the use of its passengers in going from one car to another, it was error to instruct the jury that defendant was bound to construct said passageway in a manner as reasonably safe as possible. It was held that the use of the last two words in the preceding sentence carried the liability of the street railway company too far for the reason that when a passenger on a street railway steps from a car upon the street he becomes a traveler upon the highway. The court there stress the distinction between that case and the case at bar by saying:

"In the very nature of things, such a carrier (a street railway company) can have no stations, * * * and hence, when operating its cars within the limits of a city or town, it must receive its passengers from, and discharge them in, a public street."

The defendant in the case at bar maintains stations at least to the extent of selling tickets for passage from one such station to another.

Finlayson v. Bryan, 56 N.D. 407 (217 N.W. 662), also cited by defendant, is a case where it is held that it was not negligence on the part of defendant to have a lap robe in its auto or taxicab.

Waldron v. Southwestern Bus Company, 42 Ohio App. 549 (182 N.E. 596), also cited by defendant, is distinguishable from the case at bar in that there plaintiff was a passenger in the daytime, while in the case at bar the accident occurred in the dark of the evening; and there is a further distinction between the two cases, because in the Ohio case plaintiff stopped and waited for a number of automobiles to pass before making the attempt to cross the street which attempt resulted in her being struck and injured by a westbound automobile. The facts there clearly show that plaintiff was fully aware that she was about to cross a public highway. In the case at bar, the crucial question was whether plaintiff knew, or in the exercise of ordinary care should have known, that he was crossing a public highway when he was injured.

The case of Hudnut v. Indiana DeLuxe Cab Co., 182 N.E. 711, also cited by defendant, is one wherein plaintiff engaged one of defendant's taxicabs to transport her from one place to another in the city of South Bend. The driver urged plaintiff to alight by jumping from the running board of the taxicab to the curb. This, plaintiff attempted to do, but fell and was injured. The court say:

"With full knowledge of the surroundings and hazards confronting her, and after discussing with the driver, the possibility of successfully alighting upon the sidewalk in that manner, the appellant attempted to jump from the taxicab to the sidewalk and was injured."

In the case at bar, the learned trial judge instructed the jury that if they should find that plaintiff, when he alighted, knew, or by the exercise of reasonable care should have known, that he was on the east side of the highway and would have to cross the highway to reach his destination, then their verdict should be for the defendant.

In further support of the motions for nonsuit and directed verdict, it is argued that plaintiff was guilty of contributory negligence. In the opinion of the writer, that was a matter of fact. The plaintiff claims that he thought, when he left the stage, he needed only to pass around the rear thereof in order to enter the ticket office and reach a telephone there by means of which he intended to telephone to his employer.

This is a case of a passenger, who, on the day before the accident in suit, had seen defendant's stage stop in front of the ticket office and on its side of the highway to accommodate passengers. Whether such passenger, when discharged in the dark from another of such stages, would in the exercise of reasonable prudence believe that he had been discharged at the same place, and whether, under those circumstances, in leaving the stage he was negligent in not being on guard and in not looking out for traffic, are questions of fact which the jury should decide. That was the view taken by the learned trial judge and the writer concurs in it.

The writer has examined the requested instructions, which were refused and those which were modified, and finds no error in the course taken by the trial court in that regard.

It was suggested, on oral argument, that the trial judge failed to give the statutory instruction, —

"That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory, the finding shall be according to the preponderance of evidence." Subdiv. 5, section 9-2001, Oregon Code 1930.

We find in the charge of the court the following language:

"This being a civil case, the affirmative of the issue must be proved and when the evidence is contradictory, your verdict must be in accordance with the preponderance of the evidence."

Believing that there is no reversible error, the writer thinks that the judgment of the circuit court should be affirmed.

BEAN and CAMPBELL, JJ., concur in this dissent.