
    Featherstone, an Infant, v. The Cleveland Railway Co.
    
      (Decided January 14, 1929.)
    
      Messrs. Moore, Mahon, Miller & Moore, for plaintiff in error.
    
      Messrs. Squire, Sanders S Dempsey, for defendant in error.
   Vickery, J.

This case comes into court on a petition in error to the municipal court of the city of Cleveland.

We learn from the record that the plaintiff below, Lucille Pancoast Featherstone, boarded a bus on Euclid avenue near East Ninth street, going west, which bus was so crowded that she was compelled to stand up; that while the bus was going at a high rate of speed, to wit, about 25 miles an hour, somebody appeared directly ahead, crossing the street, and the bus driver applied the brakes so quickly, and with such force, that it brought the bus to an abrupt standstill and precipitated to the floor all the passengers who were standing, the plaintiff being one of them; that plaintiff’s ankle was broken, and she was otherwise severely injured.

Plaintiff brought action, as already stated, and introduced certain evidence, her own and that of some other witnesses, both as to the extent of the injury and as to the cause. At the conclusion of her testimony, on motion made by counsel for tbe Cleveland Railway Company, tbe operator of the busses, a non-suit was directed against the plaintiff, and a judgment entered in favor of the railway company. A motion for a new trial was made and overruled, and it is to reverse that judgment that error is prosecuted here.

One of the plaintiff’s witnesses testified that she was standing up in the car, and just before they came to the Williamson Building a man appeared on the street in front of the bus, and that the driver, in order to avoid an accident, put the brakes on so suddenly that it stopped the bus from its onward course in such sudden manner that all the passengers who were standing were precipitated to the floor.

Apparently the theory of the court below was that, inasmuch as the driver, in order to save a person on the street, applied the brakes thus suddenly, he was guilty of no negligence, and therefore that the plaintiff was not entitled to recover. There is one thing, however, that the court left out of his consideration, and that was the speed of the bus. Now it must be remembered that from Ninth street to a point at the Williamson Building is one of the busiest parts of the busy city of Cleveland. The streets are constantly being crossed by pedestrians, and vehicles of all kinds are drawing out from the curb or going along the street, and the street is not a particularly wide one. Now, in order to escape responsibility, the driver of the bus must have his car under such control, and drive at such a speed, that he can stop his car, if the emergency arises, without causing injury to the passengers who have paid for a safe ride in the bus. In other words, he must drive his car in such a manner that he can anticipate, and look out, and protect his passengers if some emergency arises, or something appears in front of his bus, and can stop it without causing serious damages, or any damages, to his passengers. Now, in this case, the plaintiff’s testimony was that the bus was going 25 miles or more an hour. This may or may not be negligence. It depends entirely upon the situation. It depends entirely upon the traffic upon the street. It is prima facie negligence in driving the car more than 15 miles an hour in a closely built up district such as this is.

This was a question for the jury to determine. If this case had been submitted to a jury, they might have found that the driver was guilty of no negligence; that the emergency was so sudden that, even though the bus had been going slower, the accident would have happened just the same. But those are questions of fact which the court could not determine. There was surely more than a scintilla of evidence in this record to show that the defendant company was guilty of negligence in the speedy operation of this bus, and we think, therefore, that the court erred in directing a nonsuit and in entering up a judgment in favor of the defendant before all the evidence was heard.

The judgment, therefore, will be reversed, and the cause remanded to the municipal court for a new trial.

Judgment reversed and cause remanded.

Sullivan, P. J-., and Levine, J., concur.  