HANKS, by next friend, v. GEORGIA POWER COMPANY et al.
(86 Ga. App. 654)
(72 SE2d 198)
Action for damages; from Fulton Superior Court-- Judge Pharr. March 21, 1952.
SUTTON, C. J.
1. The allegations of the petition show that the defendant was not operating its bus, on which the plaintiff was riding home from school, primarily and exclusively at the time in question for the purpose of transporting school children from school, but was carrying school children only incidentally to its duty of carrying members of the public, as a common carrier for hire, operating its bus on a schedule and along an established route; and therefore the defendant was not required to have its bus marked "School Bus," under the provisions of Code 68-311.
2. The petition further shows that the defendant discharged its duty to the plaintiff by carrying her to its regular stopping place which was nearest the plaintiff's home, where the bus stopped on the right-hand side of the street, some three feet from the curb, thirty feet beyond the sign marking the regular bus stop, and ten feet before reaching the curb line of an intersecting street, this being a safe place; and the defendant's driver was not bound to foresee that the plaintiff would pass around the bus in such a period of time as to be in the path of a truck traveling in the opposite direction on the same street at an alleged speed of fifty-five miles per hour.
3. The petition failed to set out a cause of action against the defendant power company, and the court did not err in sustaining its demurrers thereto and in dismissing the action as to that company.
Marcia Joanne Hanks, by her father, William U. Hanks, as next friend, brought suit against Georgia Power Company and others for damages for personal injuries, and in her amended petition alleged substantially the following with regard to the liability of the defendant power company: Georgia Power Company was, November 14, 1949, operating lines of electric and motor busses on the streets of Atlanta, in Fulton County, as a common carrier of passengers for hire, and on said date was operating a motor bus on its Virginia-McLynn line, as a carrier of passengers for hire. The Virginia-McLynn bus line runs along Virginia Avenue, past the Samuel Inman School, and on an established route into the main business section of Atlanta, a part of the route being along Argonne Avenue, in a southerly direction from Eighth Street to the place where Fifth Street runs into Argonne Avenue from the west. The nearest bus stop to the home of the plaintiff, when she was traveling home from said school, is on the west side of Argonne Avenue, about 30 feet north of the northwest corner of Argonne Avenue and Fifth Street. Business establishments are on the east side of Argonne Avenue at this point. The plaintiff was six years of age and attending the kindergarten at said public school; and at noon on said date, in the company of other children of the school, she boarded the Virginia-McLynn bus of the power company, to be transported to the bus stop nearest her home, having paid her fare as a school-child passenger on said bus. The bus stopped on the right side of Argonne Avenue, about three feet from the curb, 10 feet before reaching the curb line of Fifth Street and 30 feet south of the sign marking the regular bus stop. When said bus stopped at said stop, the plaintiff, in company with Robert B. Bowen Jr., also a pupil of Samuel Inman kindergarten, was at the rear door for the purpose of alighting from said bus and crossing from the west side of Argonne Avenue to the east side, a fact well known to the operator of said bus. As the bus stopped, a laundry truck driven by the defendant Woodrow H. Mitchem, who was an employee of Bet-R-Way Cleaners & Laundry Inc., also a defendant, approached from the south on Argonne Avenue, traveling on the west (driver's left) side of the center line at 55 miles per hour. With vehicles parked on either side of the street, there was only room for one car to pass at the bus stop. Before the rear door was opened and before the plaintiff was invited to alight, the operator of the bus saw, or by the exercise of ordinary care should have seen, the laundry truck approaching; but the operator opened the rear door for the children, did not warn them of the approaching truck, and allowed them to get off.
The operator opened the front and rear doors of the bus, and passengers entered at the front of the bus. The operator made change for at least one passenger; and, while he was doing this, the plaintiff and young Bowen got off the bus. Although the operator of the bus knew that the children were ready to get off, he did not warn the plaintiff not to get off or that the laundry truck was approaching. Under the circumstances, the place where the bus stopped was an unsafe place for the plaintiff, a six-year-old child, to get off the bus. The plaintiff left the bus, started across Argonne Avenue, was hit by the left front of the laundry truck driven by Mitchem on the west side of the center line of the street, and was knocked 25 feet down Argonne Avenue, thereby sustaining severe injuries. Georgia Power Company had been operating motor vehicles used in transporting school children to and from school daily and regularly when the schools were open, transporting a large number of the school children of Atlanta. The bus on which the plaintiff was riding was so engaged, and on said date was transporting and carrying a number of school children as passengers from Samuel Inman School to their homes. The bus on which the plaintiff was riding was not distinctly marked "School Bus" on front, rear, and sides, in letters not less than five inches in length, and so plainly written or printed and so arranged as to be legible to persons approaching said bus, and did not have "School Bus" written or printed anywhere upon it in any size. Georgia Power Company, in order to induce school children to ride on its busses, offered a reduced rate to attract school children as passengers, and the plaintiff at the time in question was riding at such reduced rate. In order to accommodate school children being transported, the power company operated and scheduled extra busses and maintained the operation of busses that would ordinarily have been taken off, and the bus on which the plaintiff was riding was such a bus.
It was alleged that Georgia Power Company was negligent in the following respects: (a) In failing to mark the bus "School Bus" on the front, rear, and sides thereof, in letters five inches in length, so plainly written or printed and so arranged as to be legible to persons approaching from the front of said bus.
(b) In failing to mark the bus in any way whatsoever so as to advise persons approaching the bus from the front that it was used for transporting school children.
(c) In failing, by its driver, to keep a watch out so as to observe the truck of the defendant Mitchem approaching from the front of the bus.
(d) In failing to warn the plaintiff of the approaching laundry truck.
(e) In failing to furnish the plaintiff, a passenger a safe place to get off the bus.
(f) In failing to keep the rear door of said bus closed until the laundry truck had passed "and that bus had stopped where said Marcia Joanne Hanks would have a safe place to alight."
(g) In stopping said bus 30 feet north of its regularly designated stop.
The demurrers of the defendant laundry company and its driver were overruled. The plaintiff excepts to the judgment sustaining certain general and special demurrers of Georgia Power Company to the petition, as referred to in the opinion.
1. The special demurrers to sub-paragraphs (a) and (b), alleging the defendant's negligence, challenge the correctness of the pleader's conclusion that the defendant violated its duty to the plaintiff by failing to mark its bus "School Bus." Code 68-311 is captioned, "School busses required to be marked," but the body of this section defines a school bus as a motor vehicle used in transporting school children to and from schools. We think that this act was intended to apply to busses primarily and exclusively used for such transportation, and not to a bus operating as a common carrier for hire, traveling on a schedule along an established route, and transporting school children only as an incident of its duty to transport any member of the public who wishes to ride and pays his fare. The petition in the present case alleges that the defendant's bus was operated both as a common carrier and as a school bus, but it would be unreasonable to hold that the bus of a common carrier of passengers becomes a school bus whenever a school child going to or from school boards it, thereby imposing statutory duties upon the carrier and upon other traffic using the streets beyond the common-law duties of exercising certain degrees of care in respect to the passengers' safety. For instance motor vehicles approaching a school bus are required to stop and to remain stopped while the bus is discharging or taking on school children. Code, 68-310. On the other hand, a driver of a motor vehicle may slow down and pass at a distance of at least eight feet from an ordinary passenger-carrying bus which he has overtaken while it is taking on or discharging passengers. Code, 68-303 (h). There is also a difference in the manner of operating a school bus and a common carrier. The school bus ordinarily takes on school children at the street or highway in front of their homes and carries them to the school grounds; after school hours the children again board the bus at the school, and each child is taken to his respective home. The bus in the present case is alleged to have been making a scheduled run on a regular line; it took on school children and other passengers at various points along the line and carried them, not to their homes but to certain established stopping places, which might be near or far from the passengers' intended, ultimate destinations.
Therefore, we hold that Code 68-311 applies only to vehicles which are being primarily used at a given time for the purpose of transporting school children between home and school, whether by contract with the school authorities, with the school children, or with their parents, and that this Code section does not apply to the common carrier in the present case, which was carrying school children only incidentally to its duty of carrying members of the public. In the case of Dishinger v. Suburban Coach Co., 84 Ga. App. 498 (1) (66 S. E. 2d, 242), the bus there in question was held to be a school bus and required to be so marked where it was used to transport school children to and from a certain school, and, when so appropriated, carried only school children and no others. The bus in the present case was not so appropriated or used. The demurrers to specifications of negligence (a) and (b) were properly sustained.
2. The defendant's demurrers to the remaining allegations of negligence, sub-paragraphs (c), (d), (e), (f), and (g), assert that these allegations of negligence were not supported by pleaded facts showing a breach of duty on the part of the defendant power company to the plaintiff. The allegations were that the driver stopped 30 feet from a regular stop for the bus, failed to notice the approaching laundry truck, opened the door of the bus to the plaintiff without warning her of the approaching truck, and thereby failed to furnish her a safe place to get off the bus.
The petition alleged that the plaintiff was "at the rear door for the purpose of alighting from said bus and crossing from the west side of Argonne Avenue to the east side, a fact well known to the operator of said bus." It is elsewhere alleged that the operator of the bus knew that the plaintiff was ready to get off. In the absence of any pleaded facts showing how the operator knew or had any means of knowing the fact that the plaintiff was going to cross the street--construing the petition against the pleader on demurrer--the only fact alleged to have been known to the operator is that the plaintiff was at the rear door of the bus ready to get off. It is not alleged where the plaintiff's home was, or where her final destination was, other than the stop nearest her home, and it appears that there were business establishments across the street. Ordinarily, the driver of a school bus, who takes on the children and discharges them at their homes, necessarily knows where his young passengers live, and that they will go there at once, which is a circumstance to be considered in determining the safety of the place where the children have been allowed to leave the school bus. See Gazaway v. Nicholson, 61 Ga. App. 3 (5 S. E. 2d, 391); s.c., 190 Ga. 345 (9 S. E. 2d, 154).
The bus in the present case was not a school bus and was alleged to have been carrying the plaintiff to its regular stopping place nearest her home, where it stopped, 30 feet from the regular stop and 3 feet from the right curb of the street. The petition fails to show that the place where the bus stopped for the plaintiff to alight was not a safe place. The bus stopped on its right-hand side of the street, some 3 feet from the curb, and about 30 feet south of the sign marking the regular bus stop, and 10 feet before reaching the curb line of the intersecting street; but it does not appear that the place where the bus was alleged to have stopped was not just as safe a place as if it had stopped exactly at the sign marking the bus stop. See Locke v. Ford, 54 Ga. App. 322 (3) (187 S. E. 715). Could it reasonably be said that the driver of the bus was bound to foresee when he opened the doors that the plaintiff would pass around his bus in such a period of time as to be in the path of the laundry truck, which was approaching at an alleged speed of 55 miles per hour, and which therefore would have been at a considerable distance from the bus when the driver opened the doors? We think not. As stated in the case of Dishinger v. Suburban Coach Co., 84 Ga. App. 498, 507 (supra): "Where, however, such a child [age seven] is not deposited on the highway or in such a way as to face it in alighting, and the driver of the bus does not know that to reach its home the child must cross the highway after being discharged from the bus, it cannot be said that the driver is negligent in not depositing the child in a safe place, and that the bus company is liable for an injury sustained by the child thereafter at the hands of another." Also, see Greeson v. Davis, 62 Ga. App. 667 (9 S. E. 2d, 690). The allegations of the defendant's negligence, sub-paragraphs (c), (d), (e), (f), and (g), show no breach of the defendant's duty to the plaintiff, and the special demurrers thereto on such grounds were properly sustained.
3. The petition failed to set out a cause of action against the defendant Georgia Power Company, and the court did not err in sustaining its demurrers thereto and in dismissing the action as to the power company.
Judgment affirmed. Felton and Worrill, JJ., concur.
MacDougald, Troutman, Sams & Schroder, Howard, Tiller & Howard, James A. Branch, Thomas B. Branch Jr., contra.
Wright, Oxford & Love, for plaintiff in error.
DECIDED JULY 16, 1952 -- REHEARING DENIED JULY 29, 1952.
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Saturday May 23 04:47 EDT