On appeal from the judgment of the Superior Court, Law Division, Camden County. Certified on the court's own motion from the list of the Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld and Burling. For reversal -- Justice Heher. The opinion of the court was delivered by Case, J.
The single question is whether the court erred in dismissing the complaint after plaintiff had closed her case on negligence.
Plaintiff's intestate, Robert H. McKinney, had been a passenger on defendant's bus. At about one o'clock in the morning of November 27, 1947, the bus stopped on White Horse Pike at the intersection with Beechwood Avenue, Oaklyn, New Jersey. The summary of what transpired is stated in appellant's brief thus:
"After the last passenger was observed getting off the bus, the driver pulled away from the stop and in a matter of seconds a bump was felt by almost all of the witnesses when the right rear wheel of the bus was felt to go over an object. The bus was stopped. Upon examination most of the witnesses agree that said last passenger was found dead lying parallel with and in the gutter on White Horse Pike with his head pointing south."
The bus had drawn up to the curb, the front close to the curb, the back at a distance from the curb variously testified to have been from one foot to four or five feet. Three passengers, men, alighted; Judd, Fred Kampmeyer and the decedent. Judd died between the time of the accident and the date of the trial; consequently his testimony was not available. Nothing unusual appears to have attended his leaving the bus. The second man to get off was Kampmeyer, who, as he was getting off, saw a man ahead of him walking around the rear end of the bus. It was conceded that the last mentioned person was Judd. Kampmeyer testified that the front of the bus was close to the curb and that so far as he knew he stepped directly from the bus to the pavement. Appellant's suggestion that the decedent, McKinney, was the third and last passenger to alight is consistent with the proofs. One of the witnesses said that when the bus started the door was not entirely closed, but there is no evidence that that incident was or could have been a factor in the accident; indeed, the witness further testified that she saw the decedent get off the bus and that he was not on the steps when the bus started. The bus pulled away from the curb. After a short interval, described as "right away," "a few seconds," "a few feet," there was a jolt which was conceded at the argument to have been the movement of the bus in passing over the decedent's body. The rear of the bus had double wheels, which, on the right side, passed over the body. Following that jolt or bump the bus was stopped half-way across the Beechwood Avenue intersection, an inspection was made and the body was discovered in the position described above. Other details of the evidence will be discussed in the course of the opinion.
Appellant first invokes the provisions of the two statutes as follows:
R.S. 39:4-65. "No operator of a vehicle shall stop the vehicle on the highway for the purpose of letting off or taking on a person, other than at the curb or side of the road or highway, or knowingly permit a person to alight from or enter upon the vehicle while it is in motion."
R.S. 39:4-68. "No operator of a street car or autobus shall knowingly operate the same while any door thereof is open."
The testimony does not support the inference that an open door was a causative factor. The stopping was at the curb on the side of the road or highway. There is no proof that there was an appreciable space between the car-step and the curb. Nor is there proof that the passenger alighted or attempted to alight while the vehicle was in motion, much less that the driver knowingly permitted that to be done.
Appellant does not charge a specific act or omission as being the proximate cause of the accident. Her brief has ten numbered paragraphs containing matter which she alleges would, in relation to the whole testimony, have justified the jury in inferring negligence had the case been submitted. We shall follow the plan of the brief and state, and comment upon, that series of numbered paragraphs.
"(1) The decedent was a passenger on the defendant's bus and alighted therefrom at the corner of Beechwood Avenue and White Horse Pike in Oaklyn."
That proposition is conceded.
"(2) The driver of the bus had swerved into the curb at a sharp angle."
There is no proof of a "sharp angle" except as follows. The testimony of the witness Standen is that the bus in making its stop went "up to the curb and pulled sharp into the curb," and he explained this by saying that while the front was pulled into the curb the rear of the bus was "four or five feet" out. The witness Cleaver, in answer to the question "How did it (the bus) get to the curb when it came to a stop?" testified, "It made a turn and the front of the bus came to the curb." The witness further said that the rear of the bus was farther away from the curb than was the front, but she gave no suggestion of how much farther. The witness Hughes gave this testimony:
"It swerved in from the highway and stopped on the right-hand corner of Beachwood Avenue, the bus stop.
"Q. Can you estimate how far the front door or steps were from the curb?
"Q. Was the front of the bus nearer or farther away from the curb when it stopped?
"A. The front of the bus was nearer to the curb."
The witness Fauver, a fellow passenger, testifying of the driver's approach to the stop, said: "He pulled into the curb, and his rear, I would say, was about one foot from the curbline, but his front was right at the gutter, the curb, rather." We find nothing in that or other testimony from which it may fairly be inferred that the front of the bus from which the decedent made his exit was not safely located for the discharge of passengers. The door from which the exit was made was at the very front of the vehicle, with nothing beyond except the enclosing wall. It was in front of the front wheel. The engine was at the rear. The bus was thirty feet long, but there was a much less distance between the front and the rear wheels. The front wheels were in back of the front doors and the rear wheels were in front of the engine and just behind the side doors. The wheels, both front and rear, are shown by the photographic exhibits to be recessed under the side of the vehicle. There was something in the way of a rubber fender protruding one and one-half inches. The construction of the bus being as it was it is not apparent how the front right wheel could have come to the curb or been against the curb without placing the step in convenient location with respect thereto.
"(3) The door of the bus stopped and the body of decedent was found in gutter of White Horse Pike very near the corner of Beechwood Avenue and White Horse Pike close to a telephone pole and approximately 15 feet south from the bus stop sign."
The body was found between the pole and the bus-stop sign, if it be understood that the body was in the gutter and the two erections were on the other side of the curb in the sidewalk space. We do not grasp the meaning of the words "The door of the bus stopped." The proof is not that the body
was found at the precise spot where the door had been. The whole action occurred within a limited area.
"(4) The decedent was the third and last man to get off the bus at the corner in question, and the driver of the bus did not see more than two people alight."
That is true, but it is not shown to have been part of the driver's duty to count the number of passengers who got off. There is no element of actionable negligence in the suggested omission. There may be some significance in the testimony of the witness Weatherford that the first two men to get off "were very close together" and the third man was not "as close."
"(5) The bus was started very quickly; thus, Mrs. Cislo testified that the bus lost no time in having pulled away from the curb and Dorothy Cleaver indicated that when the last man was getting out the bus started up right away, and the driver of the bus claimed that he had stopped the bus as quickly as possible after the bus ran over the decedent's body, but the rear of the bus was then half across Beechwood Avenue."
The bus had stopped originally in such a position that the front was at the street corner. The distance from there across the intersection -- the rear of the bus was half way across the intersection when the bus stopped following the jolt or bump -- was not great. The jolt to the bus was not instantaneous notice that the reason for it was the later discovered fact, and we read no controlling import in the traveling of those few feet. The testimony imputed to the witnesses would not support a finding of negligent driving. It is not made clear what effect the speed of the bus, after the passenger had alighted, would have in causing the accident. There is no proof that he had not left the car and there is positive evidence that he had.
"(6) Immediately after the bus started the bump was felt."
"(7) When the driver started the bus after the decedent alighted therefrom, the door ...