The Greyhound Corporation, Appellant, v. Mrs. Frances J. Ault, Appellee, 238 F.2d 198 (5th Cir. 1956)

The suit was for damages to plaintiff-appellee, resulting from a fall in defendant's bus, in which she and two other ladies were the only passengers, and as to which they and the bus driver were the only witnesses.

Plaintiff's claim was that her fall and injuries were the proximate result of the failures¹  of defendant and its driver to exercise extraordinary care and diligence for her protection and safety.

The defendant, denying plaintiff's claim that it was negligent, alleged that if plaintiff received injuries they were the result of her failure to exercise ordinary care and diligence for her own safety.

On the issues of negligence thus joined, the case was tried to a jury on the testimony²  of the bus driver and the three passengers, and there was a verdict and judgment for $7500.

Specifying seven errors,³  the most argued of which is the failure to instruct a verdict, appellant presses upon us that, upon the undisputed evidence, no case was made out against it and a verdict should have been directed, and, in the alternative, the judgment should be reversed for prejudicial procedural errors.

Appellant concedes that in Georgia, as in other states, all carriers of passengers, though not insurers, must exercise extraordinary care and diligence for the safety of their passengers, and that the Georgia statutes provide that proof of injury is "prima facie evidence of want of reasonable skill and care" on the part of motor carriers. Sec. 68-710, Georgia Code Annotated.

Urging upon us, however, that there is no evidence contradicting the bus driver's version of the occurrence, except upon the question whether at the time of the slowing up Mrs. Ault had taken her seat, as the driver said was the case, or was still standing, as the three passengers said she was, and that this conflict is without bearing upon the question of the driver's negligence, appellant insists that there is no evidence whatever of negligence on its part. It argues, in short, that if because of the sudden action of the other car, and no one disputes this, it became necessary for the driver to stop the car suddenly to avoid a collision, he cannot be blamed for stopping the bus rather than, merely because Mrs. Ault was standing, refusing to stop it and going on into collision with the coming car.

We agree with the appellant that the driver's testimony as to the speed at which he was going and as to what caused the accident, is uncontradicted. It does not follow, though, that this testimony made out a case which, as matter of law, required an instructed verdict for defendant. The question of the speed at which the driver was going is not determinative of the issue. The question after all, under the testimony as a whole, is whether since the plaintiff, a lady, had risen and was walking in the aisle, the driver should not have slowed the bus down sooner and more gradually until she got safely back to her seat.

Certainly the plaintiff took some risk of being found negligent, in respect of which she would be chargeable, in unnecessarily and voluntarily getting up and going forward to talk to the driver, although the distance was small, only a few seats. The driver, too, took the risk of being found negligent for not doing so, when, seeing her rise to come forward, he neither required her to resume her seat nor slowed down to protect her against any necessary sudden swerving or sudden stopping which might cause her injury.

But these facts, that the plaintiff was in the aisle and that, according to the uncontradicted version of the cause of the fall, the driver was confronted with a sudden emergency, made it of the greatest importance that the law of the case should be correctly charged and that no improper or extraneous matter be allowed to come into it.

With this in mind, we take up the procedural errors charged to deal first with the complaint of the failure to give in charge to the jury defendant's special charges four and five. Examining that complaint in the light of the general charge, we are of the opinion that the court, in its general charge, dealt fully and correctly with the obligations of care imposed upon passengers and driver, indeed he drew a large part of his charge from defendant's requested charges, including four and five, and that there is no basis for contending that there was prejudicial error in refusing these charges.

The matter stands differently, however, as to appellant's complaints: (1) that it was error to submit to the jury the issue of special damages; and (2) that there was serious and prejudicial error in permitting the argument of the plaintiff, in substance, "You ought to find a verdict against the bus company because they put Mrs. Ault off the bus at a dark corner without giving her proper attention and finding out that she was more seriously injured", to go unchecked and unrebuked.

In support of its objection to the submission to the jury of the loss of plaintiff's earning capacity, on the ground that there was no evidence justifying the submission of the special damage issue, and further that the charge in effect allowed the jury to give double damages for diminished earning capacity, appellant cites many cases from Georgia,⁴  including one decided by this court, Sinclair Refining Co. v. Tompkins, 117 F.2d 596, 598. Pointing to the entire lack of evidence that plaintiff's earnings had been in anywise diminished, it urges upon us that in submitting this issue, the court committed serious and prejudicial error.

In Sinclair Refining Co. v. Tompkins, supra, this court, speaking through Judge Sibley, disapproving the submission of special damages, said this:

"It was proven that the plaintiff was unable to leave the house for some five months to look after her dairy and farm as she had done, and at the time of trial was only keeping the books. But it appeared that her business did not stop, but went right on. She did not say she suffered any monetary loss, or that her lost time was worth anything. There was no evidence on which the jury could estimate her pecuniary loss, if any. In this connection loss of time means loss of earnings."

On the issue of prejudicial argument, we think it equally clear that there was error in permitting the argument to go on without reprimand or precautionary instruction to the jury, and we think this is made to stand out more clearly by the position taken and the arguments made by appellee in her brief in support of that position, that Sec. 68-308, Georgia Code Annotated, the Georgia hit and run statute,⁵  applies in this case and that she was entitled to so tell the jury.

As pointed out in the two authorities she cites, Battle v. Kilcrease, 54 Ga.App. 808, 189 S.E. 573 and Hunter v. State, 65 Ga.App. 766, 16 S.E.2d 500, a violation of this statute carries with it in a civil suit for damages a moral odium which characterizes the person charged with it almost as an aggressor and authorizes the infliction of punitive damages upon him. The statute by its terms applies to, and only to, persons who strike and injure persons or property and then run away. It has no application whatever to this case. No contention was made, indeed none could be, either in the pleadings or proof that what happened here was a hit and run accident under the statute. On the contrary, it is admitted that the driver carried plaintiff on to, and put her off at, the place where she wanted to stop. He offered to take her name and report her injury if she had any, and she declared she had none. In the argument to the jury, the plaintiff's counsel stated, "I'll show you another ground of negligence on the part of the bus company. They put her off on a dark corner at night, knowing that she was hurt. They put her out in the middle of the street.", to which the defendant objected, that it was highly improper as not based on any allegation of negligence in the suit. Whereupon plaintiff's counsel replied, "Let him answer that when he gets his time to argue. I think I have a right to argue." And the court said, "Go ahead with the argument."

For the errors above noted, the judgment is reversed and the cause is remanded for further and not inconsistent proceedings.