Capital Transportation Co. v. Alexander , 219 Ark. 419 ( 1951 )

George Rose Smith, J.

This is a suit for personal injuries sustained by the appellee while attempting to alight from a city bus operated by the appellant in Little Rock. In the court below the appellee obtained a verdict and judgment for $1,348.

This is-the plaintiff’s version of the accident: On the afternoon of January 18, 1949, she rode one of the defendant’s buses on her way home from work. When the bus stopped at Sixteenth and High streets plaintiff attempted to leave by the rear door. This door is usually held rigidly shut by air pressure and can be opened only if the bus driver releases the air by operating a lever at his seat in the front end of the bus. When the pressure is released the door hangs in a slack position and can be pushed open easily by passengers.

In trying to leave the bus the plaintiff pushed against the door, but it would not open. The driver called to her several times, saying, “Push, push,” and while the plaintiff was doing so the door opened and she fell to the ground, suffering a fractured wrist and other injuries. This evidence is not uncontradicted, but the jury were justified in believing that the accident happened in this manner.

The bus company first argues that the plaintiff ‘ ‘ did not prove her case by a preponderance of the evidence.” It is not our function to weigh the testimony in common law cases; the verdict must be sustained if it rests upon substantial évidence. Here the proof is of that character. The mechanism controlling the rear doors of the appellant’s buses must evidently not be released while a passenger is pushing strongly against the door, else there is danger of an occurrence like that of which the appellee complains. Obviously a passenger can almost never be in a position to offer proof of the exact instant at which the bus driver pulled the lever at his end of the vehicle. The issue .was properly submitted to the jury, who were at liberty to infer that the proximate cause of the accident was the driver’s negligence in releasing the air pressure while the plaintiff was vigorously pushing against the door in obedience to the driver’s directions.

The other grounds for reversal have to do with the giving and refusal of instructions. At the defendant’s request the court gave two general instructions on the subject of contributory negligence, both of which told the jury that the plaintiff was not entitled to recover if her own carelessness contributed in the slightest degree to the cause of her injuries. The appellant insists that the court should also have given three other instructions on the subject, which would respectively have told the jury that (a) the plaintiff’s failure to use the hand supports at the door may have been contributory negligence, (b) her failure to abandon the rear door and leave by the front door may have been contributory negligence, and (c) her exertion of more force against the door than was necessary may have been contributory negligence. The court modified the third of these instructions, to permit the jury to consider the bus driver’s directions that plaintiff push against the door; the other two instructions were refused.

We think the court acted correctly in the matter. The issue of contributory negligence had been fully covered by general instructions, and the court was not required to over-emphasize this defense'by devoting a separate charge to each act that might be thought to amount to negligence. The case is similar to Dunman v. Raney, 118 Ark. 337, 176 S. W. 339, which was an action by a patient against a physician for malpractice.. In addition to general instructions on the issue of contributory negligence the defendant requested two instructions detailing specific conduct that might amount to such negligence. We held that the requests were properly refused as being abstract and also as being sufficiently covered by the instructions given. Here the requests were not abstract, but they were adequately covered by the rest of the court’s charge. Of course counsel were free to, and doubtless did, bring these matters to the jury’s attention during the argument of the case.

Appellant also objects to the plaintiff’s principal instruction, which summarized her theory of the case and submitted the main issues to the jury. The instruction is said to be abstract, but we are not told in what particular and do not find it subject to this objection. It is also argued that here too the court should have incorporated the various specific acts that might constitute contributory negligence, but for the reasons already given we think it was enough for the court to refer to this defense in general language.

Affirmed.

Ward, J., dissents.