A & A Cab Operating Co. v. Drake

RILEY, J. Bertha Drake sued plaintiff in error to recover damages for personal injuries sustained by her while a passenger in defendant’s cab, operated for hire. On March 1, 1945, plaintiff entered defendant’s cab at the corner of Main and Robinson streets in Oklahoma City. As plaintiff approached the cab, defendant’s chauffeur opened the door to permit plaintiff to enter, which plaintiff did. But before plaintiff could be seated, the cab door closed against plaintiff’s right hand, on the framework of the cab, so as to break and mangle the bones of plaintiff’s hand, resulting in plaintiff’s partial but permanent injury for which she sought damages, together with that for pain and suffering, medical care, and the like. Negligence of defendant was predicated upon allegations of failure to use care to prevent the door from closing so as to injure plaintiff; and it was alleged that the cab, at the time of the accidental injury, was stopped in a position that permitted the door of the cab to swing shut. Defendant, in answer, pleaded that plaintiff’s injury and damages, if any, were proximately caused by an intervening act of some third person, unknown to defendant; and contributory negligence of which plaintiff was guilty. The issues were joined by reply denying allegations of defendant’s answer, and the cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $3,875, for which judgment was — 230 — rendered against defendant; and defendant' has appealed. Plaintiff testified that defendant’s chauffeur opened the door of the cab as she entered — it was very slick — had started to mist — the cab was tilted when she caught hold of the center piece to get into the back seat — the chauffeur opened the front door for another lady. “The door come (sic) shut and hit me on my hip; the back door hit me on the hip and threw me off my balance, and to keep from falling, I caught hold of that center piece with my hand; that front door slammed on my hand. The ice and snow were banked there; the cab did not seem to be level; the driver did not get out. The right wheels of the cab were up on that snow which was banked up against the curb until the cab seemed to be in a tilted position. It did not seem level; there was one lady in the front seat with the driver. He took me to the Medical Arts Building and I found a doctor there. I remained under the care of the doctor until May or June, 1945. I have not been able to do a day’s work since and still have pain and discomfort in that hand; it runs clear back to the elbow.” Dr. White (Phil E.), whose qualifications were admitted, testified as to the extent of plaintiff’s injuries. Defendant then admitted plaintiff’s disability, but denied its liability. Mrs. Drake, being recalled, testified that the door just came shut and hit her right hand; and denied, on cross-examination, that a lady in the front seat offered to give her $5 to pay her doctor bill. Defendant’s demurrer to plaintiff’s evidence was overruled and defendant produced Ola Padgett as a witness, who testified that on March 1, 1945, she was a passenger in the taxicab of defendant when plaintiff was injured; that she was the last to enter the cab; that she opened the door of the cab and got in the front seat; there were three people in the back seat when the witness pulled the door to and shut it, whereupon plaintiff said: “Look what you done to my hand” .... “I was sorry if I done it, and I said, ‘Well, I don’t know what to do but I will give you $5 to go to the doctor with it’. She said no, she would not take my money — she did not blame me for it.” The testimony of Arline Nesbitt corroborated that of Mrs. Drake, as did the testimony of Mrs. Joe M. Sprinkle. Morgan B. Moore, defendant’s chauffeur, testified that the cab was level when plaintiff entered; that all of the ladies came up practically at the same time; the back seat was loaded first, then the front seat, “the door came to and caught the lady’s fingers”. “Q. Did you hear any conversation between the lady in the front seat— who mentioned the doctor? A. The lady in the front seat, the way I understand it, I really don’t know.” Thereafter the witness corroborated defendant’s prior witnesses, and denied that he closed the door of the cab on plaintiff’s fingers. There rests upon carriers for hire a very high degree of care to safeguard passengers from harm, occasioned by their negligence. Whether defendant was guilty of negligence in the case at bar is a question of fact— this question of fact was submitted to the jury under instructions assumed to be proper in the absence of objections, and by the jury determined favorably to plaintiff. The testimony of Mrs. Padgett that she closed the cab door on plaintiff’s hand, if believed by the jury, would have sustained defendant’s plea of an intervening agency as a result of which defendant might have been relieved from liability. But the evidence was somewhat conflicting. That of plaintiff was supported by testimony as to physical facts which, by the jury, were evidently believed. — 231 — But if the cab door was closed by the passenger in the front seat, as testified to by her, the issue of the proximate cause of plaintiffs injury was properly submitted to the jury. Prickett v. Sulzberger & Sons Co., 57 Okla. 567, 157 P. 356. Negligence may consist of a failure to exercise care and what is or what is not negligence is ordinarily a question for the jury and not the court, especially when the standard of duty is not fixed but variable. Where the standard of duty shifts with the circumstances of the case, it is incapable of being determined as a matter of law. Whether the circumstances in a given case are such as to suggest the necessity of assisting a passenger is a question for the jury. Under such circumstances, the composite as a whole, assuming their individual selection as reasonable men, a jury would seem to be as well qualified to make the determination as a good but single judge on the bench. It is only where facts are such that all reasonable men must draw the same conclusion that the question of negligence vel non becomes one of law for the court and then only in the absence of negligence on defendant’s part contributing to the injury, plaintiff may not recover damages. The proximate cause of an injury is ordinarily a question for the jury. St. Louis & S. F. R. Co. v. Davis, 37 Okla. 340, 132 P. 337; Griffin Gro. Co. v. Scroggins, 145 Okla. 9, 293 P. 235; Tulsa Yellow Cab, etc., v. Salomon, 181 Okla. 519, 75 P. 2d 197. “So, when the rule of intervening efficient cause is relied on by the defendant, it is ordinarily a question for the jury whether there was such an intervening efficient cause as would prevent the negligent act or omission of the defendant from being the proximate cause of the injury”. 38 Am. Jur., Negligence, §352, pp. 1060-1061. If this defendant’s agent should have foreseen and anticipated that the act of a third party might combine with defendant’s acts or omissions to cause an injury to plaintiff, then the act of the third party is noneffective to relieve defendant from liability for its own negligence. The jury apparently believed defendant violated its duty to plaintiff in this regard, for when plaintiff sought and secured passage in the cab there was evidence that it was tilted so that the doors of their own weight would swing shut and that the front door closed, to plaintiff’s injury and damage, through no fault of her own against which she could guard against to save herself. City of Okmulgee v. Hemphill, 183 Okla. 450, 83 P. 2d 189, but see Intriligator v. Goldberg, 299 Mass. 333, 12 N.E. 2d 730. Affirmed. HURST, C.J., and WELCH, ARNOLD, and LUTTRELL, JJ., concur. DAVI-SON, V.C.J., and BAYLESS, CORN, and GIBSON, JJ., dissent.