Vogel v. Stupi

Opinion by Mr. Justice Drew, This action in trespass was instituted for James J. Vogel, a minor, by his father as guardian, and by his parents, Frank and Iona Vogel, in their own behalf. One defendant was Walter Stupi, the driver of an automobile which struck the minor plaintiff shortly after he had alighted from a school bus which was operated by Johns-town Traction Company, the other defendant. At the trial, the jury returned verdicts against both defendants. Motions for judgment n. o. v. and for a new trial having been made by each defendant, and refused by the court en banc, the following judgments were entered on the verdicts: $3,162.00 for the parents and $26,600.00 for the minor. The Johnstown Traction Company alone appealed from the entry of the judgments and assigned as error the refusal of its motions. Our analysis of the record must conform to a well settled principle of adjective law; that all facts and inferences deducible therefrom must be considered in the light most favorable to plaintiff’s case, in determining whether judgment n. o. v. should be entered. The application of this rule to the case before us establishes the following factual situation. On February 21,1945, plaintiff, six years of age, was a passenger on a school bus operated by defendant traction company under a contract with the School District of Conemaugh Township. About 3:30 o’clock, Eastern War Time, the bus was stopped to discharge passengers at a point on Route No. 53 about two miles east of Johns-town, Pennsylvania, and directly across the road from plaintiff’s home. This part of the highway consisted of a concrete roadbed sixteen feet wide, bordered on either side by a macadam strip three feet in width. The bus had travelled in an easterly direction from the Lincoln School where about thirty grade school children had been picked up. The bus which was seven feet wide had *256 been stopped with its extreme left portion about six inches to the right of the center line of the highway and with all four wheels on the concrete. When the door, located toward the front of the bus opposite the driver, was opened, a group of the children, including plaintiff, alighted. A ten-year old boy, a member of the school’s safety patrol, was the first passenger off the bus. He took up a position in front of the bus and in the middle of the highway, carrying a pole with a signal flag attached. Almost as soon as he had done so he saw an automobile approaching from the east and immediately swung the pole parallel to the road to prevent the children from attempting to cross. The minor plaintiff was then standing in front of the left front fender of the bus and far enough away from the patrol boy that the pole did not restrain him or push him back. The road was icy and slippery and as the car approached the group of children, it skidded and its rear swung over the center line of the highway; the driver straightened it up in time to avoid striking the bus. However, as the car passed the minor plaintiff, its left rear bumper struck the back of his right leg, seriously and permanently injuring his thigh. Plaintiff fell with part of his body on each side of the center line but the testimony does not precisely establish the position he occupied when struck. It is possible that the child took a step forward immediately before the accident. Defendant Stupi, who was called by plaintiff as if for cross-examination, testified that when he first saw the bus it was in motion. The vehicles were then about 1,000 feet apart. Although he continued to see the bus as they moved toward each other, he did not recognize it as a school bus until he was about two hundred feet away and he saw “children coming out of the bus”. From the place where the bus stopped, its driver had an unobstructed view ahead of 800 feet. He saw or should have seen the automobile approaching. When Stupi saw the *257 children preparing to cross the road, he realized the dangerous situation and applied his brakes. He testified that his speed ivas then thirty miles an hour but other witnesses, called by plaintiffs, estimated it as high as fifty miles an hour. The speed and slippery road caused the car to skid when the brakes were applied. The jury found him negligent and there is ample testimony to support that conclusion. He did not appeal. Johnstown Traction Company, appellant, contends that judgment n. o. v. should be entered in its favor for the reason that plaintiffs have not shown negligence on the part of the bus driver which was the proximate cause of the injury. The factual situation here presented is new in this jurisdiction. Our study of the decisional authorities reveals no Pennsylvania case which can be regarded as controlling. Cf. Stuckwish v. Hagan Corp., 316 Pa. 513, 175 A. 381. The learned trial judge, in his oral charge, correctly presented the question of appellant’s negligence as follows : “The traction company in carrying children of tender years to and from school are bound to use every reasonable caution and care for the safety of these children, either while they are riding in the bus or alighting from the bus or leaving the immediate vicinity of the bus at the completion of their journey. You should ask yourselves, when considering whether the operator of the bus was negligent, certain interrogations — perhaps others which we will not mention: Did the bus driver take every reasonable precaution as he stopped the bus, opened the door and left the children out, and as they stood in front of the bus? Did the bus driver have a clear view ahead? Did he see the Stupi car coming toward him before he opened the door? If he didn’t, would a man taking reasonable care have seen the oncoming Stupi car? If so, then should he have opened the doors, knowing the children would have to cross the road to go to their home, which, we believe, he admitted he knew? Or after the children were out in front of the school bus, *258 when he saw the Stupi car skid, then should he have given some warning to the children, particularly to young Jimmie; or did he have time to give any warning? His testimony was that he hadn’t. “There is no rule of law that a school bus shall never have its doors open if a car is approaching. In heavy traffic, such a rule might make it impossible to permit children to alight for a long period of time. But, under the circumstances in this case, was it a careful and prudent thing to open the doors of the bus?” The above statement is in accord with the basic principles of negligence law: “In respect of a passenger who is a minor, the carrier is bound to exercise a high degree of care, and, as to a young child, it has been asserted that the carrier owes the highest practical degree of care on the part of its employees in carrying out the contract of carriage, and that the age of such child is a factor which must be considered in the measurement of such care.”: 13 C.J.S., Carriers, section 694; Chicago, M. & St. P. Ry. Co. v. Harrelson, (C.C.A. 8th Cir.) 14 F. 2d 893. The same principle is thus more fully stated in 37 Am. Jur., Motor Transportation, section 149 (1946 Pocket Parts) : “Perhaps the most frequent single consideration taken into account by the courts in determining whether the place where a motor carrier has discharged a passenger is safe or not is the age of such passenger. This is especially true where, as in the case of transportation of school children, the operator knows that the passenger must cross the highway after leaving the bus to get to his destination. It is generally held that the care to be exercised must be proportioned to the degree of danger inherent in the child’s youth and inexperience . . . Where the operator of a motorbus can see that there is a vehicle approaching and knows that his passenger is required to cross the highway to reach his destination, it has been held negligent to discharge such passenger before the vehicle has passed . . . And it can scarcely *259 be doubted that the duty to warn a passenger of approaching danger is more imperative where the passenger is a child.” See Phillips v. Hardgrove, 161 Wash. 121, 296 P. 559; Taylor v. Patterson’s Adm’r., 272 Ky. 415, 114 S. W. 2d 488; Hunter v. Boyd, 203 S. C. 518, 28 S. E. 2d 412; Burnett v. Allen, 114 Fla. 489, 154 So. 515. In Earl W. Baker & Co. v. Lagaly, (C. C. A. 10th Cir.) 144 F. 2d 344, a very similar fact situation was presented except the child was hit by a truck which came from the rear of the school bus. The pertinent excerpts of the opinion of the court are as follows: “The bus proceeded ... to the point in front of the Lagaly home where it stopped. The driver knew that the paved highway was traveled generally; knew or should haye known that the Lagaly children would immediately start across it in order to reach their home; and knew or should have known that the truck was following the bus. Yet, without exerting any effort to ascertain' the condition of traffic approaching from the rear, without making any effort to ascertain the proximity of the truck, and without giving the children any warning in respect of the approaching truck, he opened the door and permitted them to alight. Considering all the facts and circumstances in their totality, the jury was warranted in finding that the driver was negligent in the operation of the bus, and that the negligence was a proximate cause of the accident.” This case was for the jury. It is impossible to say as a matter of law that defendant transportation company was not guilty of negligence, or that its negligence was not the proximate cause of this unfortunate accident. The company by contract accepted a grave responsibility to carry children to and from school, and in discharge of this duty it was bound to exercise the highest practical degree of care. Whether it did so or not, on the facts of the case, was clearly a question for the jury. *260 Appellant’s motion for a new trial is pressed only on the ground that the judgments are grossly excessive. With this we must agree as to the judgment for minor plaintiff. There is no question that this child suffered severe damage to his right leg and that his injuries are both painful and permanent. The muscles of the thigh were crushed and destroyed from the knee almost to the upper thigh. The exact degree of the permanent loss of use of the right leg will depend upon the success of future operations when he is older. The jury awarded him $21,600.00 for loss of earnings after he reaches the age of twenty-one, and $5,000.00 for pain and suffering, a total of $26,600.00. We are all agreed that this amount is very excessive and that if reduced to $14,-000.00, would represent what is fair and just in the circumstances. The judgment for the minor plaintiff (Appeal No. 10 March Term, 1947), is reduced to $14,-000.00. The judgment for the parents (Appeal No. 9 March Term, 1947), of $3,162.00, is left unchanged because it is not excessive. We have carefully considered all other assignments of error and find no merit in them. The motion for a new trial is overruled. Judgment (Appeal No. 9 March Term, 1947) is affirmed. Judgment (Appeal No. 10 March Term, 1947), as reduced, is affirmed.