Evans v. Yakima Valley Transportation Co.

239 P.2d 336, 39 Wash. 2d 841, 1952 Wash. LEXIS 257

• Court: Washington Supreme Court
• Decided: January 3, 1952
• Docket: 31655
• Status: Published

Opinions

Weaver, J.

This is an action to recover for personal injuries suffered by Ila Marie Evans, allegedly caused by the negligent operation of a bus owned and operated by defendant. (Ila Marie Evans will hereinafter be referred to as though she were the sole plaintiff.) A jury returned a verdict for plaintiff in the sum of seven hundred fifty dollars. Plaintiff moved fór a new trial on the grounds that the damages were inadequate and that substantial justice had not been done. The defendant bus company moved for judgment notwithstanding the verdict upon the ground that there was no evidence, or reasonable inference from evidence, to justify the verdict of the jury.

By a general order, the trial court denied defendant’s motion for judgment notwithstanding the verdict and granted plaintiff’s motion for a new trial. The order was entered prior to the promulgation of Rule 16 of Superior Court Rules, 34A Wn. (2d) 117. The bus company has appealed from this order.

It is true, as plaintiff urges, that if there is sufficient evidence to take the case to the jury, we-will not reverse an order granting a new trial when such order does not state the grounds or reasons therefor. Coppo v. Van Wieringen, 36 Wn. (2d) 120, 217 P. (2d) 294. However, it is error for the trial court to grant a motion for a new trial where there is not sufficient evidence to take the case to the jury in the first instance. The party against whom the verdict is rendered has the right to urge, upon appeal from the order granting a new trial and denying a motion for judgment notwithstanding the verdict, the fact that there was not evidence to take the case to the jury. Adams v. Anderson & Middleton Lbr. Co., 127 Wash. 678, 221 Pac. 993. The rule which we have applied, and which should govern both the trial court and this court, is stated in White v. Burke, 31 Wn. (2d) 573, 197 P. (2d) 1008 (quoting from Simmons v. Cowlitz County, 12 Wn. (2d) 84, 120 P. (2d) 479), as follows:

“ We have uniformly held that a motion for judgment notwithstanding the verdict should not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from the evidence to justify the verdict.’ ”

The court continued by defining the type of evidence to be considered by us as:

“ ‘All competent evidence in the record which is favorable to the appellants we must regard as true and must give to them the benefit of every favorable inference which may reasonably be drawn from such evidence. Where the minds of reasonable men may differ, the question should be submitted to the jury. If, when so considered, we find there is substantial evidence to sustain the verdict, the judgment thereon must be affirmed.’ ” (Italics ours.)

We have, however, discarded the “scintilla of evidence” rule. The evidence sufficient to support a verdict must be substantial. Adams v. Anderson & Middleton Lbr. Co., 124 Wash. 356, 214 Pac. 835; Knight v. Trogdon Truck Co., 191 Wash. 646, 71 P. (2d) 1003.

The question is, as we asked in Ferguson v. Seattle, 27 Wn. (2d) 55, 176 P. (2d) 445,

“Was the verdict arrived at through legitimate inference from evidence or by mere speculation? That is one of the most difficult questions which can be presented to an appellate court, since, in the absence of a definite boundary between these two methods of arriving at a conclusion, what one man classifies as legitimate inference is very apt to be regarded by another as mere speculation.”

Such being the rules which govern our consideration of this case, the evidence most favorable to the plaintiff and considered in this light, is as follows:

There is a bus loading zone on the southeast corner of the intersection of east Yakima avenue and Second street, Yakima, Washington. It is used by defendant’s busses traveling east on east Yakima avenue. A bus zone sign marks its eastern boundary. Its western boundary is 70 feet 9 inches west of the bus sign and is the north-south building line of Second street. There is no platform under the control of defendant. From the curb line of the bus zone to the building line on east Yakima avenue is a sixteen foot sidewalk. The curb is marked as a bus loading zone. On the day in question, an automobile was parked in front of, and adjacent to, the east line of the bus zone. The curb is five inches high.

Plaintiff testified that, on May 27, 1949, about 2:15 p. m., she was in front of the Star Clothing Store “at Second Street, and I noticed the bus approaching, and I looked up to see what bus it was, and it happened to be my bus, and I went over ...” (Italics ours.) Her testimony continued:

“Q. Tell what occurred after you saw the bus. A. Well, I went over, of course, to get on the bus, and when I stepped off — the bus was off far enough so I had to step off, and when I stepped off, I was at the same time getting a token out of my pocket, of a jacket I had across my arm, I was carrying a jacket because it was a warm day; so I looked down at the jacket, and when I looked up again to step on the bus, well, he had closed the door and was pulling out. Q. Now, when you looked down as you approached the bus, was anybody ahead of you? A. Yes, one lady got on the bus. There was one lady got on. . . .

“Q. And then what happened? A. Then that is practically the last thing I remember. The bus struck me, and, of course, it just knocked me out, the bus just knocked me out. . . .

“Q. And I believe you stated you were in front of the store on the corner right there; is that right? A. The Star Clothing Company. Q. And then the bus moved on beyond you; is that right? A. Well, yes, it moved on until it stopped near the end of the — the far end at the stop. Q. And how far past you did it go? A. Well, when I saw it, I just walked on as the bus was moving . . .

“Q. The front end was beyond you? A. The front end.

“Q. Were you faced right straight towards the step of the bus at that time? A. I was going at just a little kind of an angle. Q. A little bit of an angle? A. Yes. Q. Then as I understand it, you didn’t get your foot on the step of the bus at all? A. No. Q. You didn’t get your hands on the hand rail of the bus? A. No. Q. And the next thing you knew, you looked up and the bus was pulling out; is that right? A. That is right. Q. And how far had it pulled out when it hit you? A. Well, now that — naturally when the bus was pulling out, the thing I done was started to get back on the sidewalk. Then I don’t remember anything from that time on. When it hit me, it knocked me out. . . .

“Q. And as you looked up, the bus door had been closed and was starting to pull out; is that right? A. Yes, it was moving. . . .

“Q. What was it that struck you, do you know? A. No, I don’t. Q. You don’t know whether it was the door of the bus or the side of the bus? A. No, I don’t. Q. It wasn’t the front of the bus, was it? A. No. Q. Because the front of the bus had already gone on by? A. Yes, that is right. Q. Where did you fall? A. I fell in the street. Q. Did you fall forward? A. I don’t know. . . .

“Q. You say you did not run beside the bus? A. No, I did not run. . Q. But you walked fast; were you hurrying? A. Well, I might have took a hurried step or two until I saw what bus it was. Q. I see, and then your testimony is that you arrived opposite the front doors of the bus; is that right? A. Opposite —? Q. The front door of the bus or almost to the front? A. Well, I don’t exactly know what you mean. Q. Well, you know where you get on the bus, don’t you? You know where you ordinarily get on the bus? A. As I remember it, I walked angling to the bus door.” (Italics ours.)

Plaintiff’s testimony, in several respects, is contradicted by her own witnesses, the only eye-witnesses testifying to the accident. One of them testified the bus had pulled up quite close to the sidewalk; that the back of the bus was pulling out from the curb as plaintiff, standing on the sidewalk, fell flat on her face into the street; that she did not fall into the bus; that she did not fall at the side of the bus; that the witness saw no part of the bus strike plaintiff. This we disregard and proceed to test plaintiff’s rights by the evidence and reasonable inferences therefrom, favorable to her, most of which has heretofore been quoted verbatim.

In order to establish a cause of action, plaintiff must prove that the actions of defendant’s bus driver constituted negligence towards her, and that his negligent actions were the legal, or proximate, cause of her injury. Liability does not rest in the negligent act, but upon proof that the act of negligence was the proximate cause of the injury. Negligence is not a positive thing. It is to be found according to the circumstances of each case and must be determined in view of all the facts and conditions attendant at the time and place of the accident. Pinckard v. Pease, 115 Wash. 282, 197 Pac. 49; Paddock v. Tone, 25 Wn. (2d) 940, 172 P. (2d) 481. However, negligence upon the part of defendant’s driver cannot be assumed because of the mere fact that an accident happened. Sellman v. Hess, 15 Wn. (2d) 310, 130 P. (2d) 688. It must be established by evidence or by legitimate inference from established facts.

Where the prospective passenger does not have the . status of a passenger, the rule is that the carrier owes only the same duty to such person as it does to the public generally: namely, the duty of exercising ordinary care in the operation of its vehicles. Annotation, 7 A. L. R. (2d) 564. The company is not required to exercise the highest degree of care to ascertain whether or not a particular person walking or standing on a public street desires to become a passenger. Ordinary care is all that is necessary in such a case. Foster v. Seattle Electric Co., 35 Wash. 177, 76 Pac. 995. The court so instructed.

The plaintiff’s complaint alleged three separate grounds of negligence. They were, under appropriate instructions to which no exceptions were taken, submitted to the jury, as follows:

(1) That the bus operator failed to observe the plaintiff in her attempt to get on the bus, when, in the exercise of reasonable care, he should have observed her.

(2) That the bus operator closed the bus doors immediately in front of the plaintiff, when in the exercise of reasonable care, he should have left the same open, permitting the plaintiff to enter the bus.

(3) That the bus operator started the bus abruptly disregarding the pedestrians and the traffic on the highway, so that as a consequence thereof the bus collided with the plaintiff, violently precipitating her to the ground and rendering her unconscious.

The defendant contends that there is no evidence or inference therefrom which warranted the jury in finding that any of these three charges was true.

It is our opinion that the issue raised by allegation (3) should not have been submitted to the jury. There is no evidence in the record that would enable a jury to find that the bus driver “started said bus abruptly, disregarding the pedestrians and the traffic on said highway.”

The issues raised by allegations (1) and (2) are so closely interwoven that we discuss them together. The first alleges that there was negligence on the part of the bus driver, in that he did not see the plaintiff in her attempt to get on the bus; the second, that it was negligence to close the bus door immediately in front of the plaintiff.

There is nothing in the evidence, however, to show that the bus driver saw the plaintiff, or, in the exercise of reasonable care, could have seen her. Woodman v. Seattle Electric Co., 42 Wash. 406, 85 Pac. 23. Plaintiff did not testify that she could, or did, see the driver. The evidence disclosed there was another woman two or three feet in front of her. She testified, “I walked angling to the bus door.” It does not appear that she was in sight of the driver. To hold that the bus driver was negligent in not seeing her, we would have to assume that the driver could have seen her, an assumption which is negatived by plaintiff’s own testimony. Such would not be an inference from any known fact, but would be clearly a mere speculation.

The bus door closed as plaintiff approached it. This gave her notice it was taking on no more passengers. The act of closing the door was not, of itself, an act of negligence unless, prior to closing, plaintiff could have been seen by the driver and had; by some act, indicated or communicated her intention to board the bus to the driver at a time when such could have been seen or could have been accomplished with safety. Patterson v. Duke Power Co., 226 N. C. 22, 36 S. E. (2d) 713. There is, however, no evidence that plaintiff could have been seen by the bus driver, nor is there evidence that she in any manner communicated her desire to board to the driver at a time when such could have been accomplished with safety. Hence, closing the bus door was not negligence, under these circumstances, upon the part of the defendant.

Plaintiff has failed to produce any evidence of negligence on the part of defendant, either directly or by inference, based upon fact.

The cause is remanded, with directions to vacate the order granting a new trial and to dismiss the action.

Schwellenbach, C. J., Mallery, and Donworth, JJ., concur.