Airline Motor Coaches, Inc. v. Caver

226 S.W.2d 830, 148 Tex. 521, 1950 Tex. LEXIS 399

Opinions

Mr. Justice Garwood

delivered the opinion of the Court.

Petitioner, an inter-city motor bus carrier, seeks relief here from unfavorable judgments in both courts below in a suit against it by J. J. Caver, respondent, for personal injuries said to have been caused to respondent’s wife in 1944 while a passenger on petitioner’s bus by a portable radio of a fellow passenger which fell from an overhead luggage rack into the head of Mrs. Caver. The case has been tried twice, the last trial leading to three opinions in the Court of Civil Appeals. Of these, the first two held there was no evidence to sustain the sole finding of negligence, while the final one held the contrary over the dissent of Chief Justice Coe. 222 S. W. (2d) 286.

The jury submissions on liability with the corresponding answers are as follows:

“SPECIAL ISSUE NO. 2.

“Do you find from a preponderance of the evidence that defendant’s bus driver was guilty of negeligence in permitting the passenger to take such portable radio into the bus?

“Answer ‘Yes’ or ‘No’.

“answer: YES.”

“special issue no. 4.

“Do you find from a preponderance of the evidence that defendant’s bus driver knew that the portable radio had been placed upon the rack above Mrs. Caver’s head in time so that he could have removed the same from the rack before it fell?

“Answer ‘yes’ or ‘NO’.

“ANSWER: NO.”

“special issue no. 7.

“Do you find from a preponderance of the evidence that the portable radio was upon the rack above Mrs. Caver’s head for a sufficient length of time before it fell so that the bus driver by a reasonable inspection could have discovered it in time to remove it from the rack before it fell?

“Answer ‘yes’ or ‘no\

“ANSWER: NO.”

The jury also found the alleged injuries to have proximately resulted from the negligence found by its answer to Special Issue No. 2. As to this latter issue, which is the crux of the case, petitioner’s timely objections to it for lack of supporting evidence, and petitioner’s motions on the same ground for an instructed verdict and judgment notwithstanding the verdict were overruled. Petitioner raised the same question again in its unsuccessful motion for new trial, both directly and by complaint (in paragraphs 10, 11 and 12) of the court’s action on the exceptions and earlier motions mentioned.

In the Court of Civil Appeals petitioner’s only “point” with regards to the foregoing — which is substantially the same as its corresponding point in this court — reads as follows:

“The error of the trial court in refusing to hold that as a matter of law it could not be negligence for the defendant bus company to permit a passenger to bring with him aboard the bus a small portable radio. (Germane to Assignments of Error Nos. 1, 2 and 3, par. 10, 11 and 12, Amended Motion for New Trial, Tr. 33-4) ”. Respondent in the main presentation of the case below evidently construed this “point” as presenting the question of lack of evidence to support the answer to Special Issue No. 2 and briefed his reply accordingly, but contended on the first motion for rehearing that the question was not adequately presented or briefed by petitioner and now asserts that we are accordingly forbidden to consider it. This contention was righly rejected by the Court of Civil Appeals in so far as it applied to that court, and we reject it here. The argument is largely technical in that the alleged omission plainly did not interfere with a fair, complete or orderly development or consideration of the case from the standpoint of either the parties or the courts, but even technically we consider it not well taken. As before stated the motion for new trial raised the same question both directly and by clear reference in its paragraphs 10, 11 and 12, which are the same paragraphs included in its “point” above quoted. It was not necessary for the “point” itself to state in so many words that the jury finding was unsupported by evidence. Points “will be sufficient if they direct the attention of the court to the error relied upon”, and “Assignments of error * * * may be cited by reference only.” Rule 418(b), T. R. C. P. “A substantial compliance” with the briefing rules “will suffice in the interest of justice.” Rule 422. See also Rule 1. As to the petitioner’s brief below, while individual ideas may well differ over what is proper effort or method in briefing a question, this much at least is certain — that petitioner’s counsel thought he was arguing the error of the trial court in overruling objections and motions expressly based on the ground of “no evidence”, that the court below so understood it and that respondent’s reply brief proceeded as if on the same understanding. In our own view petitioner’s brief did argue the point of no evidence, and beyond any doubt did it so as to effect “a substantial compliance” with the corresponding rules. Rule 422, supra. None of our decisions or rulings cited for respondent are, we think, contrary to the conclusions above expressed.

Proceeding to the crucial question of whether there was evidence to support the finding of petitioner’s negligence in permitting the radio to be taken on board, we have concluded that there was not.

The status of the evidence on the point may be summarized as follows: The bus in question was southbound from Marshall or thereabouts to Beaumont. At Tatum, which is a few miles out of Marshall, a soldier passenger, bound for Beaumont, came on board with a portable radio. This was long before the respondent’s wife boarded the bus. She first boarded it at Kirby-ville — which is over a hundred miles southwardly from Tatum. There is no evidence that the bus was crowded when the radio was brought on board at Tatum or at any time thereafter before it reached Kirbyville, though it was evidently crowded from Kirbyville onward. The appearance and conduct of the soldier was unexceptional, except that on being addressed by the driver, he addressed the latter by the nautical term “Skipper” in replying. The evidence varied highly as to the size of the radio, the largest version being that of respondent Caver’s witness, Mrs. Troutman, who called it a medium-sized radio about fourteen or fifteen inches “square”. There was some evidence that it was made of plastic, and all agreed that it was of the “portable” type. There was no evidence of any extraordinary characteristics of the article arising from its plastic cover or otherwise that might cause it to escape from a luggage rack when ordinary luggage of the same dimensions would not do so, and we judicially know that a radio fifteen inches square is about the same bulk as a small-sized handbag or “weekend” bag. The bus was equipped with overhead baggage racks, and there is no evidence that they were such as to be more dangerous for stowage of radios than for stowage of other luggage of equivalent size and square shape, nor any contention that they were other than the usual type of racks found on most inter-city busses. Assuming the maximum size ascribed to the radio, there probably was evidence from which the jury might have inferred that it would be difficult for a passenger to stow such an article at his feet while seated or under the seat. There was also testimony from which the jury might properly conclude that the carrier had a rule forbidding radios to be stowed in the racks, and evidence to the effect that when the soldier brought the radio on board, the driver tried to persuade him to check it in the baggage compartment but finally let him bring it in with him on the promise not to put it in the rack. The only evidence as to the object of the rule was the driver’s further statement that it was designed to avoid numerous small claims for damage to the delicate mechanism of such instruments. There was no evidence of any rule against bringing radios into the bus. The accident occurred a few miles below Silsbee or about forty miles toward Beaumont from Kirbyville where Mrs. Caver had boarded the bus. At the time, Mrs. Caver sat in a special seat in the aisle toward the rear of the vehicle, and the radio evidently fell from the rack above her onto her head. It was the same radio which the soldier, who came aboard over one hundred and forty miles back, had brought in with him. It apparently fell from some cause other than an unusual motion of the bus.

No current authority need be cited for the well-known rule that, within reasonable limits, a passenger is entitled to bring luggage with him into a public conveyance, be it railway car, street car or motor bus. It was succinctly stated years ago in Gulf, C. & S. F. Ry. Co. v. Shields, 9 Texas Civ. App. 652, 29 S. W. 652, error refused, in which a slightly inebriated passenger named Harris brought on board with him a sack filled with iron, groceries and a jug of alcohol, the jug falling out. and causing a fire that burned a fellow passenger. The latter alleged “that defendant negligently allowed the said sack to be brought into the said train and into the car, and placed on a seat.” See 9 Texas Civ. App. 652, 28 S. W. 709. The court on the final appeal said: “It cannot be successfully denied that Harris had the right as a passenger to carry baggage on the train, and that he had the right to carry it in a sack, if he chose to do so.” The court added: “We think it is equally clear that, in the absence of some information or circumstance indicating that the sack contained something dangerous to other passengers, it was not the duty of appellant’s conductor or any other employe to open the sack and examine its contents.” (9 Texas Civ. App. 652, 29 S. W. 653.) At the same time it is of passing interest to note that the rule has been applied not only to the sack of the poor inebriate but also to such things as a metal pipe and bag of tools carried into a city street car by a workman (Wood v. Philadelphia Rapid Transit Co., 260 Pa. 481, 104 Atl. 69, L. R. A. 1918 F. 817) ; a package containing a leather crupper for a horse (Louisville & I. R. Co. v. Rommele, 152 Ky. 719, 154 S. W. 16, (16 Ann. Cas. 1915B, 267) ; a brief case (Williams v. New Jersey-New York Transit Co., 113 Fed. 2d 649 (2d Cir. 1940), as well as the conventional hand bag (Jackson v. Boston Elevated Ry. Co., 217 Mass. 515, 105 N. E. 379, 51 L. R. A. N. S. 1152; Ross v. Pennsylvania R. Co., (Mun. Ct. of App.) D. C., 55 Atl. 2d 346).

It is almost superfluous to add that where the passenger brings on board what he has a right to bring, it is not negligence on the part of the carrier to permit him to bring it. Conversely it could well be negligence to permit a passenger to bring in with him what is obviously an open can of gasoline, or an uncrated dog. 10 Am. Jur., “Carriers”, sec. 1306 et seq. Even where the luggage admitted is legitimate, negligence may arise from circumstances such as defective construction of luggage racks or where the luggage somehow comes to create a dangerous situation of which the carrier’s agents knew or would have known if they had fulfilled their duty (as the driver did in the instant case) of properly inspecting or policing the vehicle. These latter principles furnish the test of liability universally applied to cases of apparently legitimate luggage injuring passengers by falling from overhead racks. In Louisville, I. R. Co. v. Rommele, supra, for example, it was said:

“The evidence shows that the conductor did not see the package in the rack, or have his attention called to its presence, and there is no evidence even tending to show that there was anything in the size or appearance of this package, or the manner in which it was placed in the rack, to attract attention or to put the conductor on notice that it was not a suitable package to put in the rack, or to indicate that the motion of the car might cause it to fall, or that carrying it in the rack would probably result in injury to a passenger; on the contrary, we would say that it was just that sort of package in size, appearance, and weight for which racks in passenger cars are intended.

“With the evidence in this condition, we think the court should have directed a verdict in favor of the company.” 154 S. W. 17.

See also Ross v. Pennsylvania R. Co.; Williams v. New Jersey-New York Transit Co.; Jackson v. Boston Elevated Ry. Co., all supra; 10 Am. Jur., supra; Annotation 140 A. L. R. 1194, 1200. The same principle of actual or imputed knowledge of existing danger on the part of the carrier applies in the general field of injuries by passengers to fellow passengers, as in Sure v. Milwaukee Electric Ry. & Light Co., 148 Wis. 1, 133 N. W. 1098, 37 L. R. A. (N. S.) 724, Ann. Cas. 1913A, 1074, in which the court — overturning a special jury finding to the contrary — held that a street car motorman was not chargeable with notice that a boy passenger would voluntarily release an old-style brake handle, causing it to fly aroúnd and strike a fellow passenger. See also Annotation 140 A. L. R., supra; 10 Am. Jur., supra, sec. 1349. If the carrier’s diligence in protecting passenger A is to be measured by a presumption that passenger B will probably so conduct himself or manage his baggage as negligently to injure A, then for all practical purposes, the carrier would be an insurer. But the presumption would seem to be just the contrary. Wood v. Philadelphia Rapid Transit Co., supra. Similarly, as in the Wood case and in Gulf, C. & S. F. Ry. Co. v. Shields, supra, the character of a piece of baggage as something rather out of the ordinary does not necessarily suggest the probability of danger when allowed to enter a public vehicle.

There is no substantial extension of the above principles involved in the Commission of Appeals’ decision of Houston Electric Company v. Bragg, 276 S. W. 641 (motion for rehearing overruled, 280 S. W. 118), heavily relied on by respondent and the final majority of the court below. In that case, a passenger was allowed to bring on board a small city street car, which was heavily crowded at the time, a definitely large type of suitcase and to take it past the only available storage space at the •front into the body of the car where, being too large to be held in the owner’s lap (assuming he should find a seat), it necessarily had to be. placed in the aisle in the way of .passengers coming and going according to the many stops made by such a vehicle. Under these circumstances, there was held to be a fact question as to whether the motorman was not guilty of “lack of care in permitting the obstruction to be placed there”, the court explaining that “The negligence here alleged does not depend on knowledge of the presence of the obstruction after it is placed in the aisle, but is based on the anticipation of the obstruction and failure to use care to prevent it.” This is, in different words, but another application of the rule of a dangerous situation of which the carrier knew or by the exercise of reasonable diligence would have known. Certainly if the suitcase owner had told the motorman he was going to stow it in the aisle, or if the motorman had told the passenger so to stow it, the situation would be for all practical purposes the same as if the motorman knew it was there. The facts of the case amounted to just about that. When the passenger carried the suit case past the space beside the motorman, which was the only place in which it could have been stowed except the aisle, the motorman for all practical purposes knew it was stowed in the aisle, so as to create a dangerous hazard. In theory the case is similar to one in which the carrier’s agent sees a passenger bring a clearly dangerous instrumentality into a bus or car yet permit him to do it. Both the dangerous situation and the carrier’s knowledge of it thus begin when the article comes into the car. But let us suppose that instead of a large suitcase, the offending article in the Bragg decision had been an oversized ladies purse or a sizeable package purchased at the store, either of which could have been kept in the passenger’s arms or lap with less inconvenience than, say, holding a two-year-old child? Certainly the result would have been different, as it would also have been even with the big suitcase, if there were no evidence of a then crowded condition of the car, or if there were some other storage space available within the car— such as baggage racks of sufficient capacity. Assuming that in the case at bar the offending luggage had been an ordinary medium-sized hand bag, instead of a portable radio, a p'arallel with the Bragg case would exist only if the bus driver had seen the bag stowed in a dangerous manner in the rack or had negligently failed to see it so stowed; and the jury findings that he did neither would clearly have ended the litigation. As already suggested, there is no presumption, when baggage racks are provided, that the passenger will stow his luggage there in a careless manner, so as to endanger the luggage itself or the passengers, including himself. The “invitation” evidenced by baggage racks is no invitation to commit negligence. Even if a passenger brings aboard some article that obviously would not rest safely in a baggage rack, it is yet not ordinarily negligence merely to let him enter the vehicle with it, because the presumption is that he will not risk putting it where it plainly does not belong, unless — as in the Bragg case — special circumstances are such as to make the contrary likely to occur.

Such being the rules as to luggage generally, why in the instant case should it be negligence to allow a medium-sized portable radio to come on board? If it had been a hand bag, brief case or package of the same external characteristics, obviously there would have been no negligence. It is said that the company rule makes a difference. But, as stated, the rule was only one against stowing radios in the racks. By necessary implication it permitted them to be brought on board. How can a rule that permits radios to come on board prove that it is negligence to permit them on board? If it be urged, despite lack of any evidence to this effect, that the rule is for the protection of passengers from being hurt by falling radios, rather than merely protecting the company against vexatious claims for damage to the delicate mechanism of the radios themselves, as the driver testified, the only logical relevance of the rule to the present case would be that it might of itself impose on the driver a duty to take radios out of racks if he saw them there and to make inspections against the possibility of their being put there without his knowledge; and this duty, if it should exist, is found by the jury to have been discharged. Even where a safety rule is violated, the violation is not necessarily evidence of negligence. In 10 Am. Jur., supra, sec. 1642, it is said:

“However, rules of a carrier not known to, and relied upon, by the passenger are not admissible in evidence in an action against it for injury to him, where they require of the employees a greater duty than the law imposes upon it. In an action against the operator of a trolley car for injury to a child in jumping from the front platform of the car, which he reached because the doors were not closed, evidence is not admissible of a rule requiring motormen to keep such doors closed under penalty of suspension.” Much less should we say that, because a rule permits something to be done, it is negligence to do it.

There is, as stated, no testimony about the visible characteristics of the radio or of its passenger-owner, that bespoke a dangerous situation when the radio came on board. The bare fact that the cover was made of plastic rather than something else is obviously not significant. Nor do we think the driver’s preference to have the radio kept out of the bus is evidence of negligence in allowing it to come in. He gave as his reason the desire to avoid claims for damage to radios. Even if the jury chose to disbelieve this reason, while yet believing his statement that he preferred to keep the radio out, we have left only an unexplained action on the driver’s part. Surely that is not evidence that the radio was a dangerous instrumentality, so peculiarly disposed to jump out of a rack or otherwise injure passengers, that its mere admission into the bus was like admitting an uncrated animal or can of explosive. Nor is it evidence that, if admitted, the radio would likely be so carelessly stowed by its passenger-owner as to risk damage to it and the persons of the passengers, including the owner. Especially in the light of common knowledge about radios, which are about as numerous in this nation as bath tubs and automobiles, would it be unreasonable to permit a jury speculation that the driver’s attitude reflecting his knowledge of, and so the existence of, peculiar dangers inherent in radios or radio owners not otherwise suggested by the record.

The foregoing conclusions dispose of the case and render unnecessary any consideration of petitioner’s point based on allegedly improper argument of respondent’s counsel to the jury.

The judgments of both courts below are reversed. Since the case has evidently been fully developed in the course of its two trials, judgment is here rendered that J. J. Caver, respondent, take nothing.

Opinion delivered January 25, 1950.