Williams Ex Rel. Williams v. Queen City Coach Co.

Barnhill, J. On this record we must consider the rifle which, injured the plaintiff not as a firearm but as baggage. It is so characterized by plaintiff in his complaint. So considering it the court below concluded that plaintiff had failed to offer any evidence of actionable negligence on the part of the defendant in respect thereto. ¥e concur in that conclusion. There is no evidence in the record tending to show that there was any defect in the baggage rack or that it was negligently constructed or that it was not of the standard type in general use in buses. Saunders v. R. R., 185 N. C., 289, 117 S. E., 4; Williams v. N. J.-N.Y. Transit Co., 113 F. (2d), 649. It is a matter of common knowledge that .22 rifles are small firearms three feet or more in length. S. v. Vick, 213 N. C., 235, 195 S. E., 779. While the space between the floor bars of the rack was such that an object of this kind would fall between them if not held by the support or cross bars, the spacing of these supports or cross bars is not disclosed and there is no fact or circumstance to indicate that such object, properly placed in the rack, would not be adequately held and retained by them. The plaintiff does not allege or attempt to prove that the rifle was such unusual or dangerous baggage that the attention of defendant’s employee should have been attracted by it as the passenger entered the bus and that it should have warned him to make sure immediately it would not be stored in such manner that it might inflict injury on some passenger. Instead, he alleges “that defendant knew, or in the exercise of ordinary and reasonable care should have known, that said baggage racks would be used by passengers to store rifles and guns, and knew . . . that such objects would be dislodged by the vibration of said bus when in motion . . .” So then the question comes to this: Was the baggage dislodged from the rack by the mode of operation of the bus or was it placed in the rack in an insecure manner, of which fact defendant had either actual or constructive notice ? There is no evidence of any unusual jerk or jolt in excess of such as are incident to the ordinary operation of a bus, Wade v. North Coast Transp. Co., 5 P. (2d), 985, and cases cited, or of any unusually sudden- or violent stopping or braking of the bus such as would cause or be likely to cause the baggage to fall. Rosenthal v. N. Y., N. H. & H. R. Co., 89 A., 888, 51 L. R. A. (N. S.), 775. To the contrary, “the bus was just pulling out and was going very slowly.” *194 Ordinarily a carrier is not responsible for injury to a passenger from the acts of another passenger unless the circumstances are such that, by the exercise of ordinary care, he could have anticipated the danger *and guarded against it. Adams v. L. & W. R. Co., 121 S. W., 419; L. & N. R. Co v. Rommele, 154 S. W., 16, Ann. Cas. 1915B, 267. The duty of caring for small baggage rests primarily upon the passenger to whom it belongs. The negligence, if any, of the carrier rests in the fact that its employee did not, in the exercise of ordinary care, see the precarious or dangerous manner in which baggage was placed and either remove it or secure it. Anno. 37 L. R. A. (N. S.), 724. If the servants of defendant whose duty it is to look after the safety and comfort of passengers see, or have opportunity in the performance of their duties to see, a package or bundle in a rack, and it is of such size or appearance, or is so placed in the rack as that a prudent person in the exercise of ordinary care might reasonably anticipate that the movement of the car would cause it to fall out, it is the duty of such servants to remove it from the rack or to secure it in some way, and if they fail so to do, and the passenger is injured by the fall of the package from the rack, the carrier will be liable. L. & N. R. Co. v. Rommele, supra. Liability rests upon failure to act after notice. In order to make it the duty of an employee to act, he must have actual notice that the baggage is placed in the rack in such manner or is of such size or shape that it is likely to fall and injure some passenger, or the condition creating danger must have existed a sufficient length of time to affect him with constructive notice. Greer v. Public Service Co-ordinated Transport, 12 A. (2d), 844; Burns v. P. R. Co., 82 A., 246, Ann. Cas. 1913B, 811; Adams v. L. & N. R. Co., supra. The plaintiff makes no contention that the employee of defendant knew the rifle had been placed in the rack. If there was anything in the appearance of the rifle as so placed to indicate danger of its falling — and there is no testimony tending to so show — this condition of things had not existed long enough for it to be a question for the jury whether by the exercise of ordinary care the defendant’s employee should have observed it. Williams v. N. J.-N. Y. Transit Co., supra; Beiser v. Cincinnati N. C. & T. P. Ry. Co., 153 S. W., 742; Gulf, C. & S. F. Ry. Co. v. Shields, 29 S. W., 652; 4 Blashfield Cyc. L. & P., pt. 1, 47. It follows that the plaintiff has failed to make out a case for the jury on the cause of action alleged. Hence the judgment below must be Affirmed. Sea well, J., dissents.