Atlanta Transit System, Inc. v. Allen

101 S.E.2d 134, 96 Ga. App. 622, 1957 Ga. App. LEXIS 650

• Court: Court of Appeals of Georgia
• Decided: October 22, 1957
• Docket: 36867
• Status: Published

Opinions

Gardner, P. J.

A common carrier has the duty to exercise extraordinary care to protect passengers on its vehicle. See McBride v. Ga. Ry. & Electric Co., 125 Ga. 515, 516 (54 S. E. 674), and Beardsley v. Suburban Coach Co., 83 Ga. App. 381 (63 S. E. 2d 911). There are numerous other decisions to the same effect.

Counsel for the defendant relies on the theory that the plaintiff’s wife did not use proper care for her own safety; that she could have asked the operator to check the door to see what was wrong; that she could have used the front door as a means of egress; that she used excessive force to open the back door and thus she was the author of her own injury. Counsel cites Mansfield v. Richardson, 118 Ga. 250 (3) (45 S. E. 269) wherein the Supreme Court said: “In cases of personal injuries, the plaintiff as a conscious human agent is bound to exercise ordinary care to avoid the consequences of the defendant’s negligence, by remaining away, going away, or getting out of the way of a probable or known danger.” In Bessman v. Greyhound Bus Depot of Atlanta, 81 Ga. App. 428, 429 (58 S. E. 2d 922) this court said: “Ordinarily, questions of negligence and proximate cause are for determination by a jury, but it is the duty of the courts to decide such questions as a matter of law on demurrer in clear and indisputable cases.” The following cases hold that a person must use ordinary care to avoid injury to his or her person: City of Columbus v. Griggs, 113 Ga. 597 (38 S. E. 953, 84 Am. St. R. 257); Simmons v. Seaboard Air-Line Ry., 120 Ga. 225, 227 (47 S. E. 570, 1 Ann. Cas. 777); Taylor v. Morgan, 54 Ga. App. 426 (2) (188 S. E. 44), and Fricks v. Knox Corporation, 84 Ga. App. 5 (65 S. E. 2d 423). This position is not well taken. We hold that the record does not disclose as a matter of law that the plaintiff’s wife did not use ordinary care for her own safety but that such is a jury question.

As to whether or not the operator of the bus knew or reasonably was charged with knowledge that the act or omission involved danger to the plaintiff’s wife, the record does not disclose that the operator of the bus was not fully cognizant of the alleged rusty condition of the mechanism of the bus he operated. Rust requires the lapse of time to form and a jury question is presented as to whether or not this defect should have been discovered. However, in view of the allegation that he knew, or in the exercise of ordinary care should have known, of these and other facts alleged in the petition, this amounts to no more than an allegation of constructive knowledge.

It is alleged that there was a written sign over the door requiring a passenger to push on the door; that when the plaintiff’s wife pushed on the door, the door did not open; that she pushed a second time, then pushed a third time; that the last time she pushed, the operator of the vehicle released a mechanism which opened the door. While there is no allegation that the bus driver knew that the passenger was having trouble with the door, in the exercise of extraordinary care toward a passenger, a jury would be authorized to find such bus driver lacking in the exercise of extraordinary care- who committed an act that might result in injury to a passenger attempting to alight from the bus, whether the driver actually knew that the passenger was attempting to alight or not. A jury would be authorized to find it to- be the duty of the driver to determine if a passenger is attempting to alight after a signal had been given for the bus to stop for that purpose, and, if only one signal was given and a passenger was attempting to alight at the front door, where the bus driver could see without turning around, a jury would be authorized to find such bus driver negligent toward another passenger attempting to alight from the back door, such driver knowing that the bus has two doors for this purpose.

Under the allegations of the petition, the questions presented here should be determined by a jury.

The trial court did not err in denying the motion to dismiss the petition. No error appears in the overruling of the general and special demurrers to any portion of the petition.

Judgment affirmed.

Townsend and Carlisle, JJ., concur.