Conford, Foley and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
[94 NJSuper Page 508] This is an action in negligence to recover damages for loss of the sight of an eye sustained by infant plaintiff when he was struck by a pellet of some kind propelled at him with a rubber band by a fellow pupil on a school bus engaged in transporting him home from school. Defendant Hankinson was a contract operator of his own bus for defendant school board ("board" hereinafter). At the close of the evidence the board was on motion relieved of liability by the trial court on the ground that its activity in connection with the transportation of school children by bus was governmental in nature; that liability in such case could
be premised only on a showing of "active wrongdoing," and that the evidence would not reasonably permit a jury finding to that effect. Defendant Hankinson won a verdict of no cause of action from the jury.
Plaintiffs' appeal raises claims of error in the dismissal ordered with respect to the board and in the standard of care set forth in the court's charge in relation to Hankinson's duty to the children on the bus.
On June 7, 1963, the date of the occurrence in question, infant plaintiff ("plaintiff" hereinafter) was 13 years of age and one of a busload of children of comparable age being transported home from the Tinton Falls elementary school by Hankinson. The latter had been a contract busman for the board for some 20 years. There was testimony that on the day in question and on the two previous days a number of boys on the bus had been engaged in "shooting" paper clips, "spitballs" and miscellaneous other pellets at each other and at other pupils with rubber bands. Plaintiff testified that during the course of the journey on June 7 he was bent over in his seat to avoid being struck by the "stuff being thrown around," sat up when he thought it was safe, and was struck in the eye when he turned in his seat to view the rear of the bus. The object felt like "something metal." Plaintiff's testimony was in general corroborated, but there was some testimony, although controverted by him and others, that he had done some of the "shooting" before being struck. The boy who inflicted the injury was not a defendant nor present at the trial. There was medical testimony that plaintiff's injury was due to the eye's being struck by a "foreign object."
There was testimony that Hankinson was expected by the board to maintain order on the bus. He was assigned by the school authorities as assistants for this purpose other pupils, a girl and a boy, about the same age as plaintiff, to act as "safety patrolmen." On the day of the accident the boy patrolman was absent from school and thus not on the bus on either trip. Hankinson testified that he customarily tried to keep order by verbal directions to unruly pupils, by having
them seated near him and, in serious cases, by reporting the miscreants to the principal. But state school regulations prohibited him from discharging any pupil from the vehicle until his destination. The bus was equipped with a large interior rearview mirror to enable the driver to see the occupants while driving, and the passenger seats were low-backed, permitting view of all seated passengers. Some testimony indicated that Hankinson's method of correcting unruly children, particularly on the day of the accident, was merely by upbraiding them through the mirror.
Hankinson testified that on the day of the accident he observed many of the pupils enter the bus with rubber bands but thought they had been issued to the pupils for school purposes. However, after the second stop that day he took some bands away from pupils who were using them to "sting" girls leaving the bus. He said he was never aware of paper clips being shot by boys nor, on the day in question, of any objects being propelled at all. There was other testimony that both on that day and the day before he had taken rubber bands away from boys and that the girl safety patrolman had taken bands away from boys who were shooting paper clips prior to the accident. That girl testified that because of the absence of the other pupil-patrolman she had to stand in front and watch the whole bus, front and back. When she reported to Hankinson what was going on, he stopped the bus and threatened to put everyone off. But the unruly activity continued. She also testified that the children obtained the rubber bands and paper clips from teachers' desks in the schoolrooms.
One girl testified that the boy who injured plaintiff had been roaming the bus and shooting pellets from different points, then ducking to avoid reprisal.
A teacher who was in charge of the school's safety program testified he instructed the safety patrolmen on keeping order but did not speak to Hankinson on the subject. According to one of the patrolmen, they were to report any disorder to Hankinson, who was, in turn, to report it to
the principal. Hankinson was not instructed as to procedures to be taken on occasions when a safety patrolman would be absent or would have left the bus before the end of the route. The safety teacher said the only purpose of having two safety patrolmen on the bus was so that there would be at least one if the other were absent, but he admitted that the two were expected to "work as a team on the bus" and to exercise "equal power."
The school principal testified that he and the safety teacher "quite often" visited the buses before they left the school. When the driver reported an unruly situation, they would go out and "speak to the entire bus." Aside from suggesting that drivers seat individual children with behavior problems in the front of the bus, he did not instruct drivers concerning disciplinary action or as to safety precautions to protect children from eye injuries. Teachers were not instructed to keep rubber bands and paper clips away from children who might take them from classrooms. Classroom teachers were instructed as to dangers ...