Morgan v. Carolina Coach Co.

Winborne, J. Accepting as true the allegations of fact contained in the complaint, and relevant inferences of fact, necessarily deducible therefrom, as we must do in testing by demurrer thereto the sufficiency of the allegations of the complaint to state a cause of action, Merrell v. Stuart, 220 N. C., 326, 17 S. E. (2d), 458, and cases cited, the facts alleged in the complaint in the present case present this factual situation at the scene of alleged wrongful death: The school bus, marked as such by proper sign, traveling west on the highway described above gave signal, indicating intention to stop, by extending stop signal from its left side, and “turned to the right and was stopped on said highway a short distance from the paved portion thereof,” for the purpose of discharging passengers, who were school children. And while the school bus was so standing, and while school children were alighting therefrom, and before the stop signal had been withdrawn and before the school bus had moved on, the passenger bus of defendant Carolina Coach Company, also traveling west, approached on the same highway, and instead of coming to a full stop before passing the school bus, passed it and stopped to take on a passenger “at a point on said highway immediately west of said school bus,” thereby forcing intestate of plaintiff to walk to the rear of the passenger bus in order to reach the opposite side of the highway, and obstructing her view, and by the noise of its motor preventing her hearing of any traffic from the west. And as intestate of plaintiff started across the highway “to the opposite and proper side for her td travel” and had reached a point about the center of the paved portion of the highway, she was suddenly, unexpectedly and without notice or warning violently struck “by the automobile of defendant Gribbs” — -which was being driven “at a high, negligent and dangerous rate of speed.” In the light of these circumstances, are the facts sufficient to state a cause of action against defendant Carolina Coach Company? The court below was of opinion that they are, and with that view we are not in disagreement. *672 In an action to recover damages for wrongful death the plaintiff must allege and prove (1) that the defendant was negligent, (2) that such negligence, acting in continuous and unbroken sequence, and .without which the injury would not have occurred, resulted in the injury producing death, and (3) that under the circumstances a man of ordinary prudence could and would have foreseen that such result was probable. White v. Chappell, 219 N. C., 652, 14 S. E. (2d), 843; Beeves v. Staley, 220 N. C., 573, 18 S. E. (2d), 239; Mitchell v. Melts, 220 N. C., 793, 18 S. E. (2d), 406, and cases therein cited. Moreover, the statute, G. S., 20-217, requiring motor vehicles to stop for school buses in certain cases, in so far as applicable to roads and highways outside of incorporated towns and cities, provides that: “Every person using, operating, or driving a motor vehicle upon or over the roads and highways of the State of North Carolina . . . upon approaching from any direction on the same highway any school bus transporting school children to and from home, while such bus is stopped and engaged in receiving or discharging passengers therefrom upon the roads and highways of the State . . . shall bring such motor vehicle to a full stop before passing or attempting to pass such bus and shall remain stopped until said passengers are received or discharged at that place and until the ‘stop signal’ of such bus has been withdrawn or until such bus has moved on.” This statute further provides that the above provisions are applicable only in the event the school bus bears upon the front and rear thereof a plainly visible sign containing the words “school bus” in letters not less than five inches in height. It is further provided that any person violating the provisions of the statute shall be guilty of a misdemeanor, etc. The decisions of this Court are to the effect that the violation of an ordinance or statute enacted for the safety of the public is negligence per se, but such violation must be the proximate cause or one of the proximate causes of injury to warrant recovery on that ground. See White v. R. R., 216 N. C., 79, 3 S. E. (2d), 310, and numerous other cases. Furthermore, the decisions of this Court hold that the stopping of a passenger bus upon the paved portion of a highway outside of business or residential districts for the purpose of permitting a passenger to alight, is not parking or leaving the vehicle standing, within the meaning of section 123, chapter 407, Public Laws 1937, now G. S., 20-161, and .is not violative thereof. Peoples v. Fulk, 220 N. C., 635, 18 S. E. (2d), 147; Leary v. Bus Corp., 220 N. C., 745, 18 S. E. (2d), 426. See also White v. Chappell, supra. And by analogy the same principle would apply when stopping for the purpose of receiving a passenger. *673 In the White case, supra, where a child who had alighted from bus, which stopped on the highway and on which he and his mother had been riding as passengers, ran to the rear of the bus and there attempted to cross the highway and was stricken'by another motor vehicle traveling in opposite direction from that in which the bus was traveling, the opinion of this Court was that in the light of all the evidence there was no causal relation between the stopping of the bus on the pavement, to the right of the center of the highway, and the injury and death of the intestate. And in Peoples v. Fulk, supra, and Leary v. Bus Corp., supra, the motor vehicles in question were not held to have violated any statute by stopping on the highway. The present case, however, presents somewhat different factual situation. If the passenger bus of the Carolina Coach Company approached the school bus on the same highway while the school bus which was transporting school children was stopped and engaged in discharging passengers therefrom upon the highway — the school bus bearing the visible sign as required by the statute, the passenger bus should have been brought to a full stop before passing or attempting to pass the school bus and should have remained stopped until the passengérs on the school bus were discharged at that place, and until the stop signal of the bus had been withdrawn, or until such bus had moved on. A violation of this statutory duty would be negligence per se. But such violation must be a proximate cause contributing to the injury and death of intestate to warrant recovery on that ground. Here, however, whether the stopping of the bus at the place and under the circumstances alleged created a hazard which was a proximate cause contributing to the injury and death of intestate would seem to be for the jury. The judgment is Affirmed.