Pantuso v. Pgh. Motor Coach Co.

The driver of a bus, after having safely discharged a five and one-half year old boy in the custody of another fifteen years of age, is under no duty to anticipate that they will remain out of the possible line of vision of the driver until after passengers have entered, the doors of the bus have been closed, the forward motion of the bus begun, and then run along the side of the bus in an attempt to re-enter. No decision has ever imposed such an unreasonable duty, and the cases cited in the majority opinion reject the existence rather than imposition of such duty.

The majority opinion fails to recognize and give effect to several undenied and well established facts: appellee had alighted safely at a point which, while not the usual stopping place for the bus, was, nevertheless, required under the circumstances, and was calculated to best assure the safety of the passengers as they alighted. Most important of all is the fact that when the forward motion of the bus began appellee was standing to the rear of the door and at the side of the bus and, thereafter with his fifteen year old companion, he ran along the side of the bus.

What occurred was described by only one eye witness, a Dr. Russell M. Fetter, who was standing near the corner of O'Hara and Thackery Streets. His testimony on direct and cross examination clearly reveals that he first noticed the boys walking after the bus, the older boy holding the hand of the younger. ". . . the bigger boy was rapping on the bus". ". . . as soon as the bus started out they started after him . . ." The bus had only moved several feet "maybe six". After a noon recess, Dr. Fetter was called for re-direct examination. He then testified that he had seen the boys get off the bus along with other passengers. He stated: ". . . after the boys got off the bus they were standing by the door there. The rest of the passengers got off and the door closed and the bus started out. The bigger boy had the smaller boy by the hand and was rapping on the side of the bus. The bus had started out, and when he got to the turn the little boy's foot got caught by the right front wheel and ran over it."

On re-cross examination he was asked: "Q. The bus had started and the door was closed before the boys rapped on the door; is that right? A. Yes. . . . Q. They didn't go to the curb at all; is that what you mean? A. That is right."

There is no evidence in the record which warrants the statement in the majority opinion that from the evidence adduced the jury may have found: "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."

A jury cannot assume facts contrary to the evidence and base a verdict thereon. Nor has any decision of this Court been predicated upon assumptions and inferences contrary to the evidence. Whether appellant could have been found guilty of negligence depended upon whether the older boy was standing in front of the door and attempting to gain entrance by rapping thereon at the time the doors were closed and before the bus proceeded forward, or whether the boys had been standing to the rear of the door out of the driver's possible line of vision, and after the doors were closed and after the bus had started, the older boy, having the smaller boy by the hand, ran after the bus and rapped on the door. The testimony of Dr. Fetter is the sole evidence in that regard and clearly does not in any way support the assumptions relied upon by the majority opinion.

The evidence viewed most favorably to appellee does not warrant a finding that appellant had done or left undone any act which it was under a duty to do or refrain from doing under the circumstances. It is true that a very high degree of care is imposed upon those transporting children. See Vogel v.Stupi, 357 Pa. 253, 258-261, 53 A.2d 542. A common carrier's duty is not only to carry its passengers safely but an opportunity must be afforded them to alight and pass out of danger: Lyons v. Pittsburgh Railways Co., 301 Pa. 499, 501,152 A. 687. In Hughes v. Pittsburgh Transportation Co., 300 Pa. 55,58, 150 A. 153, 154, it was held that a transportation company owed a passenger for hire "the highest degree of care and diligence in carrying her to her destination and enabling her to alight safely: McBride v. McNally, 243 Pa. 206; Bickley v. P. R. Ry. Co., 257 Pa. 369; Johnston v. Director General,286 Pa. 166, 169". See O'Malley v. Laurel Line Bus Co., 311 Pa. 251,166 A. 868.

There is no evidence in the instant case that the driver knew or had any reason to surmise that appellee and his older companion were standing close to the side of the bus to the rear of the door. He had no reason to believe that the relationship of carrier and passenger had not terminated. There is not a scintilla of evidence which would warrant a finding that ample opportunity was not afforded appellee to alight safely and step out of the possible path of the body of the bus when it completed negotiating the turn into Thackery Street. InDuffy v. Philadelphia Rapid Transit Co., 291 Pa. 564, 566,140 A. 496, 497, it was said: "When plaintiff was safely landed in the cartway, with ample opportunity to step away from the car and out of danger, she ceased to be a passenger: Perret et ux. v. George et al., Receivers, 286 Pa. 221, 224." Vogel v. Stupi, supra, involved transportation of school children. The bus was hired for that specific purpose. In view of that relationship a majority of this Court held that the driver of the bus was under a duty to refrain from discharging the children in the face of possible oncoming dangers. InO'Malley v. Laurel Line Bus Co., supra, the motorman, on a dark and stormy night, stopped his bus at a point 250 feet from the regular bus stop. Instead of being on the right side of the road and near the curb, the bus was in the center of the road and 16 feet from the curb. The passengers were not advised of the foregoing facts and, because of the inclement weather, they were not aware of them. The plaintiff was struck by an automobile traveling in a direction opposite to that of the bus immediately after he stepped from the bus. That case is clearly inapplicable here. This Court emphasized the fact that (p. 256): "Here, plaintiff was discharged at an 'obviously perilous point.' " That is not true in the instant case. In Lyons v.Pittsburgh Railways Co., supra, a trolley had been stopped at the beginning of a curve and plaintiff, a passenger, was required to alight at a point where her path to the curb was temporarily blocked by automobiles. The trolley proceeded immediately after discharging the plaintiff and she was knocked down and injured when caught by the overhang of the rear as it swung around the curve. It was held that, having knowledge of the dangerous and perilous position in which the passengers had been placed by his own act, the operator was negligent in failing to afford plaintiff passenger a reasonable time within which to reach a point of safety. In the instant case there is no evidence to support a finding that appellee was not afforded reasonable time to reach the curb safely. It is clear, therefore, that all of the cases cited in the majority opinion are factually dissimilar and the holding of the cases inapposite.

Duffy v. Philadelphia Rapid Transit Co., supra, is distinguished by the majority opinion as a case of adult contributory negligence. A careful reading of the opinion of this Court, however, shows clearly that this Court held there was no actionable negligence. It was said (p. 566): ". . . 'the state of the record requires the testimony of the plaintiff, with all proper inferences deducible therefrom, to be construed in the light most favorable to her, but it is still for the court to say if, taken as true, actionable negligence by defendant has been shown' . . .". The opinion proceeds to point out that those in charge of the car were not bound to anticipate or guard against her actions. Mr. Justice WALLING, speaking for this Court, said (p. 566): "They were bound to afford her time and opportunity to alight, but not bound tocontinue stationary to see in which direction she would go. Plaintiff is unable to give any account of how the accident happened. Her injury did not result from any defect in the means of transportation, so, whether treated as a passenger or pedestrian, the accident created no presumption of negligence: . . .". (Italics supplied.) Here, appellee and Parker did alight safely, but remained standing at the side of the bus and to the rear of the door until after the doors had been closed and the forward motion of the bus resumed.

The mere fact of an accident does not establish that a duty to the injured person has been breached. Nor does the fact that the injured person is a minor five and one-half years of age, and, therefore, not chargeable with contributory negligence, create a duty. The positive evidence establishes that appellant's driver operated the bus with the greatest of care under the circumstances, that appellee alighted safely and was afforded ample opportunity to remove himself from any possible orbit of danger which might exist by reason of the fact that the bus was turning to its right, and that the accident did not result from any negligence of appellant's driver.

The judgment of the court below should be reversed and here entered for appellant.