
    The Cleveland-Akron-Canton Bus Co. v. Walker, Guardian.
    (Decided January 25, 1929.)
    
      Messrs. Musser, Kimber & Huffman, for plaintiff in error.
    
      Messrs. Smoyer & Smoyer, for defendant in error.
   Washburn, P. J.

This was an action brought by Elzona Walker, as guardian of Marvel Freisch, a young lady 19 years of age, to recover damages for a personal injury, which it was claimed she suffered while a passenger on one of the busses of the plaintiff in error, the Cleveland-Akron-Canton Bus Company.

She sued the plaintiff in error and the Northern Ohio Power & Light Company, and the trial resulted in a verdict in favor of the Northern Ohio Power & Light Company, and in her favor against the Cleveland-Akron-Canton Bus Company for the sum of $7,500.

The record discloses that in the city of Akron there is a public street known as Kenmore boulevard, which is paved and improved, and which, in the vicinity where the accident in question occurred, runs in an easterly and westerly direction.

Along parallel with and next to said street, on the southerly side thereof, is the private right of way of the Northern Ohio Power & Light Company; the pavement of the street extending to the extreme southern boundary thereof, or to the right of way of the Northern Ohio Power & Light Company. On said right of way, and next to the southerly line of said street, there is a cindered strip, and the westbound track of the Northern Ohio Power & Light Company extends along said cindered strip, the north rail of which track is 5 feet from the edge of the pavement on the street.

Said Marvel Preisch became a passenger upon one of the busses of said bus company which was traveling in an easterly direction along said pavement, and next to said cindered strip; desiring to alight from the bus at a certain stop, she rang the signal bell for that purpose, and took a position before the door of the bus, ready to alight when it stopped. The bus driver brought the bus to a stop at the designated place, and opened the door of the bus for said Marvel Preisch to alight, and, as she 'did so, she was hit by a car of the Northern Ohio Power & Light Company traveling in a westerly direction upon said track along said cindered path, and was very seriously injured.

The testimony established that said car extended over said cindered strip a distance of 16 inches from said track, and that the bus extended over a distance of 6 inches from where its wheels were standing, and there was testimony that the car was traveling 35 miles an hour, and that there was a possibility or probability that it weaved or swerved 4 inches while traveling at that rate. There was testimony that the space between the bus and the passing car was 18 inches or 2 feet, and there was testimony that, when the bus was stopped, two of its wheels — one front and one rear — were on the extreme edge of said street, which would indicate that the distance between said car and said bus was about 3 feet or a little more.

The accident occurred in the night season, when it was dark, and the bus and the street car were lighted and were provided with headlights, which were burning; many eyewitnesses who were on the bus testified that, as Miss Freisch stepped off of the bus with one foot, she was leaning forward, and was hit by the passing street car before her other foot reached the ground; and the testimony was uncontradicted that the driver of the bus saw the approaching car before he stopped, and knew at the time he opened the door for Miss Freisch to step out of the bus that the rapidly moving car was within a very short distance of the bus, and that he gave no warning to Miss Freisch until the very instant at which she was hit; in fact, the bus driver himself so testified, but he also testified that Miss Freisch got off of the bus and stepped over onto the track in front of the on-coming car, and that, when she stepped onto the track, and just as she was hit, he called out a warning to her. His was the only testimony to the effect that Miss Freisch was not hit while she was alighting from the bus, but was hit after she had alighted.

At the. request of the bus company the jurors were asked to make a special finding of fact as to where Miss Freisch was at the time she was struck by the street car, and the jurors answered that question by saying that they found by a preponderance of the evidence that she was in the act of alighting from the bus. Likewise the jurors were asked to answer whether, when Miss Freisch was struck by the street car, she had alighted from the step of the bus; and that question was answered by saying that the jurors found by a preponderance of the evidence that she had not alighted from the steps of the bus. In like manner, the further question was propounded to the jurors by the defendant bus company as to' whether or not, when Miss Freisch was struck by the street car, she was on any part of the bus; and, in answer to that, the jurors found she was not entirely free from the steps of the bus.

Considering all the evidence, including all the physical facts, we are unanimously of the opinion that such finding by the jury is not against the manifest weight of the evidence, but, on the contrary, that the finding of the jury that she was struck while she was in the act of alighting, and before both of her feet were upon the ground, is supported by the overwhelming weight of the evidence.

With that fact established, and taken in connection with the facts about which there was no dispute, the liability of the bus company was established, unless Miss Freisch was guilty of contributory negligence. The question of her contributory negligence was properly submitted to the jury, and the jury, in our judgment, was fully justified in finding that she was not guilty of contributory negligence.

It is strenuously urged that the physical facts established by the evidence are such that it would have been impossible for Miss Freisch to have been hit by the car while she was in the act of alighting from the bus.

If the bus was stopped with two of its wheels— one front and one rear — on the edge of the pavement, which is as favorable a claim as the bus company can make under the evidence, then that would leave but 38 inches between the bus and the street car, without taking into consideration any swaying of the street car, and we do not regard such physical facts as inconsistent with the finding of the jury that Miss Freisch was hit before she had fully alighted from the bus. A person stepping down about 18 inches, and leaning forward, might easily be hit on the head by the street car before both feet were on the ground, and we do not think it can be claimed that a person has alighted from a bus until both feet are on the ground.

Complaint is made because the court charged the jury, at the request of Miss Freisch, as follows:

“A passenger upon an automobile bus, operated for the transportation of passengers, continues to be a passenger until he has accomplished the act of alighting from said bus in safety; and so long as the relation of carrier and passenger continues, the company operating the automobile bus owes him a high duty of care, and the relation of passenger and carrier continues, and the duty of the company as a carrier is terminated only when it has discharged him safely upon the street.”

The complaint is that the court here charged that it was the duty of the bus company to afford Miss Freisch an opportunity to get out of the bus and land on the street, whereas by another law or regulation of the highway the bus company was required to stop its bus within a foot of the edge of the pavement, and it is said that, as practically all testimony indicated that the bus was stopped on the very edge of the pavement, or slightly on the cindered strip, so that Miss Freisch had to step down on the cinders to leave the bus, therefore the jury might have found the bus company liable because it failed to give her opportunity to get out on the street.

The special findings of the jury, however, establish that the jury did not find the verdict against the bus company on the theory just indicated. They found the judgment against the bus company because Miss Freisch was invited to step out of the bus when the situation was such that she was hit by the car while she was in the very act of alighting, and before she had time to alight in safety.

In view of the special findings of the jury and all the facts in this case, we hold that it was not error to give such charge or refuse to qualify it as requested by the bus company.

It is urged that the trial court erred in charging that it was the duty of the bus company to provide Miss Freisch a safe place in which to alight from its bus, and also that, if the driver of said bus knew, or in the exercise of ordinary care should have known, of the approach of said street car, it was his duty to warn Miss Freisch of the danger to her in alighting from the bus at said time and place.

In support of this claim, counsel for the Bus Company invoke the rule established in Reining, Admx., v. Northern Ohio Traction & Light Co., 107 Ohio St., 528, 140 N. E., 84, which rule is applicable to a company in the operation of a street car which runs upon a fixed track and is stopped at a regular stop where there is danger to alighting passengers from the automobile traffic in the street, which automobiles are not confined in their operation to a fixed track, and where the injury occurred after the passenger had alighted in safety.

We do not think that such rule is applicable to the facts in the instant case. Here we have a bus which is not operated upon a fixed track, and the driver has some choice as to where he will stop and open the door for passengers to alight, and the danger to be avoided is from a street car traveling upon a fixed track on a private right of way, not in use as a part of the street, and the injury occurred while the passenger was in the act of alighting.

According to the driver’s testimony, he saw the street car coming before he stopped the bus, and, having stopped the bus in close proximity to the track upon which he knew a car was approaching, he opened the door of the bus, and impliedly invited Miss Freisch to alight, almost onto the track, in front of the on-coming car. Under such circumstances it was his duty either to have waited until the car had passed, before opening the door of the bus, or to have warned the passenger of the danger from the car so approaching.

As to the other part of the complaint: "While it may be inaccurate to charge that a carrier discharging passengers on a public highway over which it has no control is in duty bound to “provide” a safe place for its passengers to alight, such a charge was not prejudicial error under the facts in this cáse, where the passenger was injured while in the act of alighting, but before she had ceased to be a passenger, and when the carrier at the time it opened the door of the bus for its passenger to alight actually knew of the approach of the street car on the track close to which its bus had been stopped.

Under such circumstances it might be said that the bus company was negligent in not providing a safe place, but it is perfectly apparent that the jury found that the bus company was negligent in stopping its bus so close to the track as to, in a sense, create a dangerous place, and then in discharging its passenger into such dangerous place, with a full knowledge of the danger, and without warning to its passenger. It is more like stopping a car before a known pit and then opening the door and permitting a passenger to step off into the pit without warning the passenger of the danger.

The court instructed the jury, before argument, that, when a passenger on a bus has safely alighted, the relation of carrier and passenger terminates, and that, if Miss Freisch was injured after she had safely alighted from the bus, the bus company would not be liable.

In considering the parts of the charge of the court of which complaint is made, it must be kept in mind that, by the special findings of the jury, we are able to determine that the jury found the fact to be that Miss Freisch was injured before she had safely alighted, and from a source of danger which, to the knowledge of the bus company, was there at the time, and not from a source of danger which arose subsequent to the severance of the relation of carrier and passenger. In view of that finding, of which we do not disapprove, we hold that none of the claimed errors in the charge was prejudicial.

Finding no prejudieal error in the record, and that substantial justice has been done, the judgment is affirmed.

Judgment affirmed.

Funk and Pardee, JJ., concur.  