Wise v. Fannin

207 S.W.2d 764, 306 Ky. 327, 1948 Ky. LEXIS 558

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: January 16, 1948
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Sims

Affirming.

Appellant, Mrs. Sadie Wise, sought to recover of appellee, C. E. Fannin, doing business as Blue Ribbon Lines, the sum of $2,565 for personal injuries alleged to have been received by her while boarding a bus of appellee in Ashland. At the conclusion of appellant’s evidence the court sustained appellee’s motion for a directed verdict and Mrs. Wise appeals.

Appellant’s proof shows that on Feb. 10, 1946, she went to Thirteenth Street in Ashland where she found a bus of appellee parked in front of the bus station. The door of the bus was open but the driver was not present, be having gone into tbe bns station leaving tbe bns unattended by any employee of appellee. It was appellant’s intention to take passage on tbe bus to Iron-ton, Ohio.' Some little Negro boys were on tbe bus, one of whom was sitting in the driver’s seat, and as Mrs. Wise boarded tbe bus be gave tbe door a slam causing it to strike ber and break one of ber ribs. Tbe boy wbo slammed tbe door was not an employee of appellee but only a passenger on tbe bus.

It is insisted by appellant that it was the duty of appellee to either keep tbe door of tbe bus closed or else have some employee in charge to supervise tbe loading of passengers, and bis failure to do so was negligence upon tbe part of appellee wbo owed ber as a passenger tbe highest degree of care. Appellee argues that as a common carrier be is not liable for tbe negligence of a passenger in closing tbe door on Mrs. Wise.

There can be no doubt that tbe relation of carrier and passenger arose between Mrs. Wise and appellee as soon as she started boarding tbe bus with tbe intention to take passage to Ironton and to pay ber fare. 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., sec. 2142. Likewise, there is no doubt as to appellee being a common carrier of passengers and that be owed Mrs. Wise tbe highest degree of care in transporting ber to protect ber from dangers that foresight can anticipate, and to exercise tbe utmost skill, diligence and foresight for ber safety, consistent with tbe practical operation of bis bus. 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., sec. 2151.

Tbe law imposes no duty upon a common carrier to assist a passenger in boarding or alighting from its vehicle, in tbe absence of a request from the passenger for such assistance or circumstances showing an employee of tbe carrier bad notice that such passenger needed assistance. Ken-Ten Coach Co. v. Davis, 289 Ky. 329, 158 S. W. 2d 624. Nor is a common carrier liable to a passenger for injuries caused by tbe negligence of a fellow passenger or a stranger when tbe action of such fellow passenger or stranger could not have been reasonably foreseen. England v. Kinney, 272 Ky. 32, 113 S. W. 2d 838; Slaven v. Baltimore & O. R. Co., 114 W. Va. 315, 171 S. E. 818; Schwerin v. H. C. Capwell Co., 140 Cal. App. 1, 34 P. 2d 1050.

Although appellee owed Mrs. Wise the highest degree of care, a breach of duty by its driver can only be found in his failure to exercise proper diligence in the circumstances. As we recently wrote in Howard v. Fowler, 306 Ky. 567, 207 S. W. 2d 559, “While (a bus driver) may be bound to apprehend danger, his duty is limited to the natural and probable. He is not bound to anticipate nor take precautions against the unforeseeable in the normal course of events.” It would be unreasonable to require the driver of a bus, or some other employee, to remain with the bus all the time and hot leave it for an instant when there is no reason to anticipate that a passenger boarding or alighting from a standing and unguarded vehicle would be injured by the negligence of a fellow passenger.

In the circumstances presented by this record there was no negligence in the driver of the bus leaving it unattended while standing in front of the bus depot with the door open ready for passengers to board it. The trial judge properly directed a verdict in favor of appellee, and the judgment is affirmed.