Oklahoma Ry. Co. v. Clapp

WELCH, Justice. Action was for damages for personal injuries alleged to have resulted from defendants’ negligence. The judgment for the plaintiff was in accord with a jury verdict in favor of the plaintiff. The defendants seek reversal on grounds of a failure of the proof to show negligence on the part of the defendants, and that the court erred in overruling the defendants’ demurrer to the evidence and their motion for a directed verdict. On trial, it was shown that the plaintiff sustained bodily injuries while a fare-paying passenger on a bus being driven by the defendant George, in the service and on behalf of the corporate defendants, carriers for reward. [639] The plaintiff testified that after boarding the bus she sat directly behind the driver. She stated — “When we were nearing the stop sign * * * people were getting up to get off the bus. * * * I got up to get off too and the bus came to an abrupt sudden stop or about a stop and it threw me into the windshield, or into the fare box, or something that hurt my head and cracked my tooth.” The defendant, George, the driver of the bus, was called as a witness by the plaintiff and gave testimony to the effect that all the passengers in the bus were behind him and he did not see the plaintiff until he 'brought the bus to an emergency stop, or a stop as quick as he could stop it; that the plaintiff came up in the bus then; that he called for an ambulance for her; that the stop was made near the middle of the block to avoid hitting an automobile which made a right hand turn and across the pathway of the bus. The defendants assert there was no proof of a movement of the bus which was unusual and extraordinary and unnecessary, and that all these elements in proof were essential to a showing of negligence on the part of the defendants. Attention is directed to the case of Chicago, R. I. & P. R. Co. v. Larmon, 172 Okl. 461, 45 P.2d 76, wherein it was held that certain stated facts were not sufficient to show negligence. It is suggested here that in all of the testimony concerning the movements of the defendant’s bus, the witnesses but expressed their opinions as to the character of the bus stop and in such descriptive terms as to afford no proof of an unusual or extraordinary movement or stop of the bus, or to indicate any negligence in its operation. The defendants cite cases from other states containing expressions to the effect that in respect to the liability of a carrier for injury of a passenger resulting from a sudden stopping of its vehicle, the carrier is not liable unless the plaintiff proves that the act was sudden, unusual and unnecessary and of such violence as to indicate negligence; and that all these elements in proof are required. It is urged that herein there was a failure of proof that the 'bus stop was unusual and unnecessary and of such violence as to indicate negligence. It is axiomatic that in the court’s consideration of the defendants’ demurrer to the plaintiff’s evidence, the plaintiff was entitled to every inference which the evidence, considered in a light most favorable to her, reasonably tends to prove, and on a consideration of the defendants’ motion for a directed verdict, the plaintiff was entitled to the benefit of all legitimate inferences, with all unfavorable inferences disregarded. Walker v. McCray, 132 Okl. 18, 269 P. 279; Opperud v. Twedell, 175 Okl. 191, 51 P.2d 799, and Eckroat v. Landrum, 205 Okl. 119, 235 P.2d 705. In this state when the relation of carrier and paying passenger exists the carrier owes the .passenger the highest degree of care for his safety. Southwestern Motor Carriers, Inc., v. Nash, 195 Okl. 604, 159 P.2d 745. 13 O.S.1951 § 32 provides: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, * * * and must exercise to that end a reasonable degree of skill.” Under the testimony herein, and as set out above, it is made to appear that the bus was brought to a stop at a place not a regular or scheduled stop, and that the stop was of sufficient violence to throw the plaintiff from a place behind the driver up to and against the front of the bus, and that the stop was quick and sudden. Considered in a light most favorable to the plaintiff, we find the evidence reasonably tends to prove that the 'bus driver brought the bus to a stop with such suddenness and violence as to be beyond the plaintiff’s reasonable anticipation and to cause bodily injury. Upon proof of these circumstances there is an inference of failure of the bus driver to use the highest degree of care for the safe carriage of the plaintiff. Accordingly,. we find there was evidence of negligence sufficient to submit, the case to the jury. [640] The matter of necessity of the stop and whether the driver, confronted with an emergency and on discovery of the automobile in his pathway, acted with the utmost care and diligence for the safety of his passengers and the plaintiff, was for the jury. The judgment is affirmed. HALLEY, C. J., and CORN, ARNOLD and BLACKBIRD, JJ., concur. JOHNSON, V. C. J., and O’NEAL and WILLIAMS, JJ., dissent.