Opinion
36867.
DECIDED OCTOBER 22, 1957. REHEARING DENIED NOVEMBER 4, 1957.
Tort; passenger injured in fall from bus. Before Judge Pye. Fulton Superior Court. July 6, 1957.
Jule W. Felton, Jr., Russell M. Striplin, Crenshaw, Hansell, Ware Brandon, for plaintiff in error.
Cullen M. Ward, Wilson Brooks, Ward, Brooks, Parker Daniel, contra.
It is not erroneous to overrule a motion to dismiss on demurrer when it does not appear, as here, as a matter of law that a passenger did not exercise ordinary care for her own safety or that the operator of a common carrier did not exercise due care for the safety of a passenger. Such questions are for the determination of a jury.
DECIDED OCTOBER 22, 1957 — REHEARING DENIED NOVEMBER 4, 1957.
Joe Edward Allen brought suit against the Atlanta Transit System, Inc., alleging that his wife was injured because of the negligent operation of a common carrier bus operated by the defendant. The suit was brought in two counts.
Paragraph 1 of the petition alleges jurisdiction. Paragraph 2 alleges that the defendant was indebted to the plaintiff in the sum of $10,359.91.
Subsequent paragraphs read: "3. The defendant corporation is a common carrier and is engaged in the business of operating buses on the streets and roads of Fulton and DeKalb Counties, and in the City of Atlanta, whereby passengers, by paying a fare, are permitted to ride on the bus. 4. Petitioner shows that he is the husband of Mrs. Alice V. Allen. 5. Petitioner shows that on April 20, 1955, his wife, Mrs. Alice V. Allen, boarded bus No. 208 Memorial Drive-Grant Park gasoline bus at the intersection of Hunter and Mitchell Street, in downtown Atlanta, and paid her fare of 15¢ to ride the said bus to the stop nearest her home. 6. Your petitioner shows that the said defendant owed his wife the duty of extraordinary care while she was a passenger on said bus, from the time that she proceeded to get on the said bus until she was safely off at her stop. 7. Petitioner shows that as said bus proceeded near your petitioner's wife's stop on Grant Street and St. Paul Avenue, a lady unknown to your petitioner's wife pulled the cord and rang the bell for the stop. Your petitioner's wife got up from her seat to disembark from said bus at said place. 8. Your petitioner shows that when the bus stopped at the bus stop his wife was standing on the step of the back center door, and that she followed directions on the sign above the door, stating to push on the door, that his wife pushed on the door, and the door did not open, your petitioner shows that his wife pushed on the door a second time, harder than the first time, and the door did not open. Your petitioner's wife pushed a third time with all her strength and the door flew wide open, causing your petitioner's wife to fall forward out said door of the bus onto the curb and sidewalk with great force and violence, injuring your petitioner's wife as will be more fully alleged hereinafter. 9. Your petitioner shows that the said bus was being operated by a servant and agent of the defendant corporation, who was at all times mentioned herein acting for, and in behalf of the defendant in the furtherance of the defendant's business, and within the scope of his employment, and that servant and operator of said bus is well known to the defendant corporation, but is not known by name to your petitioner. 10. Your petitioner shows that the operator of said bus, the agent and servant of the defendant corporation, after hearing the bell ring for the stop, negligently failed to press the door release next to him to open the back center door, and that the said driver pressed the door release when your petitioner's wife was pushing on the door for the third time with all her strength, and thereby caused your petitioner's wife to fall violently out of said bus onto the sidewalk and curb, injuring your petitioner's wife as will be set out more fully hereinafter."
Paragraph 11 sets out injuries allegedly sustained by the wife of the plaintiff. Paragraphs 12 and 13 allege expenses incurred by the wife of the plaintiff in the premises. Paragraph 14 alleges that the damage and injuries occurred in Fulton County.
Paragraph 15 alleges as follows: "Your petitioner shows that the said defendant corporation was negligent in the following particulars, and that the said negligence was the direct and proximate cause of the injury to your petitioner's wife: (a) In failing to release the door at the said bus stop for the purpose of discharging your petitioner's wife at your petitioner's wife's bus stop, after another passenger, unknown to your petitioner had rung the said bell for said stop and your petitioner's wife was standing on the platform, and had twice pushed on the door to disembark from said bus, in compliance with instructions written above the door; (b) In pressing the release button while your petitioner's wife was pushing hard against the door with all her strength, causing your petitioner's wife to be thrown out of said bus, when the said driver pressed the door release causing the door to fly open suddenly; (c) In failing to press the release button of said door so that the door would open when pushed upon by your petitioner's wife; (d) In causing the damages which your petitioner's wife sustained at said time and place."
Paragraph 16 alleges that the defendant knew or by the exercise of ordinary care should have known that the wife of the plaintiff, on the step of the bus, pushing on the door in accordance with written instructions above the door, could have been injured. Paragraph 17 alleges the age of the plaintiff's wife to be 38 years and her life expectancy to be 28.96 years according to an acceptable mortality table. Paragraph 18 alleges that the injuries are permanent, with no improvement since the injury. Paragraph 19 alleges the inability of the plaintiff's wife to do normal household work since the injury.
Paragraph 20 reads as follows: "Your petitioner brings this suit to recover for the loss of services of his wife, for the loss of her consortium and her companionship and society, for the medical expense that he has incurred by reason of the said injuries, and lays his damages for the same at the sum of $10,359.91."
The plaintiff prays for judgment in the amount of $10,359.91.
Count II of the petition reiterates paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 17, 18, 19, and 20 of the petition as shown hereinabove and in addition alleges:
"2. Your petitioner shows that said door mechanism was defective and did not open when pushed upon by your petitioner's wife in accordance with the instructions to push the door written immediately over said door when the release button was pushed by the driver and operator of said bus, but failed to open, and thereafter opened suddenly by reason of the defective mechanism while your petitioner's wife was pushing on the same with all of her strength. 3. Defendant knew of the defect in said door mechanism or should have known of said defect in the exercise of ordinary care. The defendant should have inspected said bus for defects before placing it on the streets to carry passengers. 4. Your petitioner shows that said defendant corporation was negligent in the following particulars, and that said negligence was the direct cause of the injuries which your petitioner's wife sustained: (a) In operating the bus on the streets of the City of Atlanta for fare-paying passengers which contained a defective door and door-release system; (b) In operating the bus on the streets of Atlanta at said time and place with a defective door release mechanism, causing your petitioner's wife to be injured; (c) In having a defective door on said bus at said time and place; (d) In having a defective release button on said door at said time and place which failed to properly open the said door causing your petitioner's wife to be injured; (e) In having a defective door which failed to open for your petitioner's wife to leave the bus after she had pushed on the same in accordance with the instructions printed above the door." The plaintiff prays as in count I of the petition.
The defendant filed a general demurrer to count II of the petition and filed special demurrers to count II as follows:
"2. Defendant demurs specially to paragraph 2 of count II of the petition and moves that said paragraph be stricken in its entirety and physically purged and deleted from the petition on the ground that the allegations contained therein constitute conclusions of the pleader, unsupported by any specific facts. It is not alleged how or in what manner said door mechanism was defective; nor of what the defect consisted; nor how long prior to the accident said defect existed; nor whether or not the defendant had a sufficient opportunity to learn of the defect prior to the accident; nor that the defendant actually knew of said defect prior to the accident. Defendant is entitled to this information in order to properly prepare its defense. 3. Defendant demurs specially to the following language contained in paragraph 3 of count II of the petition, to wit: `Defendant knew of the defect in said door mechanism or should have known of said defect in the exercise of ordinary care.' and moves that the same be stricken and physically purged and deleted from the petition on the ground that said allegation constitutes a conclusion of the pleader, unsupported by any specific facts. At most, this is an allegation of constructive knowledge and not actual knowledge; furthermore, it is not good even as an allegation of constructive knowledge since no facts are alleged which would show how or why the defendant should have known of said defect since it is not alleged how or in what manner said door mechanism was defective or of what the defect consisted, and particularly is this true since it is not alleged how long prior to the accident said alleged defect existed. No facts are alleged to show that the defendant should have known of said defect. Construing the petition most strongly against the pleader, the said alleged defect could have existed only a portion of a second prior to the incident complained of and under such circumstances the defendant could not have known of such defect. 4. Defendant demurs specially to the following language contained in paragraph 3 of count II of the petition, to wit: `The defendant should have inspected said bus for defects before placing it on the streets to carry passengers.' and moves that the same be stricken and physically purged and deleted from the petition on the ground that said allegation constitutes a conclusion of the pleader, unsupported by any specific facts. It is not specifically alleged that the defendant did not inspect said bus for defects before placing it on the street to carry passengers, and in the absence of an allegation that the defendant did not so inspect, then, construing the petition most strongly against the pleader, it will be construed that the defendant did so inspect; in view of this construction, the negative implication to the contrary contained in the allegation that `the defendant should have inspected said bus for defects before placing it on the streets to carry passengers' is in conflict with the pleadings as properly construed and must, therefore, be stricken. 5. Defendant demurs specially to subparagraph (a) of paragraph 4 of count II of the petition and moves that said subparagraph be stricken in its entirety and physically purged and deleted from the petition on the ground that the allegation that the defendant was negligent in operating a bus which contained a defective door and door-release system is a conclusion of the pleader, unsupported by any specific facts. It is not alleged how or in what manner said door and door-release system were defective; nor of what the defect consisted; nor how long prior to the accident said defect existed; nor whether or not the defendant had a sufficient opportunity to learn of the defect prior to the accident; nor that the defendant actually knew of said defect prior to the accident. 6. Defendant demurs specially to subparagraph (b) of paragraph 4 of count II of the petition and moves that said subparagraph be stricken in its entirety and physically purged and deleted from the petition on the ground that the allegation that the defendant was negligent in operating a bus with a defective door-releasing mechanism is a conclusion of the pleader, unsupported by any specific facts. This is true for the same reasons as heretofore set out in this demurrer to count II of the petition in paragraph 5 above. 7. Defendant demurs specially to subparagraph (c) of paragraph 4 of count II of the petition and moves that said subparagraph be stricken in its entirety and physically purged and deleted from the petition on the ground that the allegation that the defendant was negligent in having a defective door on said bus is a conclusion of the pleader, unsupported by any specific facts. This is true for the same reasons as heretofore set out in this demurrer to count II of the petition in paragraph 5 above. 8. Defendant demurs specially to subparagraph (d) of paragraph 4 of count II of the petition and moves that said subparagraph be stricken in its entirety and physically purged and deleted from the petition on the ground that the allegation that the defendant was negligent in having a defective release button on said door is a conclusion of the pleader, unsupported by any specific facts. This is true for the same reasons as heretofore set out in this demurrer to count II of the petition in paragraph 5 above. 9. Defendant demurs specially to subparagraph (e) of paragraph 4 of count II of the petition and moves that said subparagraph be stricken in its entirety and physically purged and deleted from the petition on the ground that the allegation that the defendant was negligent in having a defective door which failed to open for petitioner's wife is a conclusion of the pleader, unsupported by any specific facts. This is true for the same reasons as heretofore set out in this demurrer to count II of the petition in paragraph 5 above. Wherefore, defendant prays that its general demurrer be sustained and that count II of the petition be dismissed with costs against petitioner; defendant further prays that its special demurrers to count II be inquired of by the court and that the same be sustained and that the objectionable language demurred to be physically purged and deleted from the petition, and that the court enter an order requiring petitioner to rewrite the petition with said objectionable language omitted."
In compliance with the special demurrers the plaintiff amended the petition in the following manner: "1. Petitioner amends count II of his petition heretofore filed by striking paragraph 2 of said count II and substituting in lieu thereof the following to be known as paragraph 2 of count II: 2. Your petitioner shows that said door mechanism was defective and did not open when pushed upon by your petitioner's wife in accordance with the instructions to push the door written immediately over said door, when the release button was pushed by the driver and operator of said bus, but failed to open, because of said defect, and said defect consisted of the latching pins or shafts were not in proper alignment with the recess holes where they fitted in the back door of said bus, and that said pins or shafts were dirty and soiled, were rusty and had not been oiled and greased and as a result, when the electric impulse and air pressure was applied thereto said pins or shafts would not immediately react to said pressure but was slow in releasing due to said poor alignment, rust, dirt, and lack of oil. 3. Petitioner amends paragraph 4 of count II of his petition as follows: By striking subparagraphs a, b, c, d and e and substituting therefor the following: (a) In operating the bus on the streets of the City of Atlanta for fare-paying passengers which contain a defective door and door-release system as hereinbefore alleged; (b) In operating the said bus on the streets of Atlanta at said time and place with a defective door-release mechanism, as hereinbefore alleged, causing your petitioner's wife to be injured; (c) In having a defective door-release mechanism as hereinbefore alleged on said bus at said time and place; (d) In having a defective door-release mechanism as hereinbefore alleged which failed to open for your petitioner's wife to leave the bus after she had pushed on the same in accordance with the written instructions printed above the door. Wherefore, your petitioner prays: (1) That the foregoing amendment be allowed subject to objection and demurrer; (2) That he have judgment against the defendant in the sum sued for plus court cost."
The court allowed the amendment and ordered the same filed subject to objection and demurrer, whereupon the defendant renewed the general and special demurrers. We think it pertinent to quote the special demurrers which read as follows: "2. Defendant demurs specially to the following language contained in paragraph 2 of count II of the petition, as amended: `said defect consisted of the latching pins or shafts were not in proper alignment with the recess holes where they fitted in the back door of said bus, and that said pins or shafts were dirty and soiled, were rusty and had not been oiled and greased and as a result, when the electric impulse and air pressure was applied thereto said pins or shafts would not immediately react to said pressure but was slow in releasing due to said poor alignment, rust, dirt, and lack of oil.' and moves that said language be stricken and physically purged and deleted from the petition on the ground that said allegation is irrelevant, immaterial and highly prejudicial for the reason that said allegations above quoted relating to the defectiveness of the rear door of the bus show that said door actually opened and reacted to electrical impulses and air pressure which was applied, and the failure of the door to `immediately' open and the fact that it `slowly' opened does not in any way illustrate any issue in the case with respect to negligence; said allegation above quoted does not show that the door was actually defective so as to be the basis for negligence, but merely shows that the door was slow in opening. 3. Defendant demurs specially to the following language contained in paragraph 2 of count II of the petition, as amended: `said defect consisted of the latching pins or shafts were not in proper alignment with the recess holes where they fitted in the back door of said bus, and that said pins or shafts were dirty and soiled, were rusty and had not been oiled and greased and as a result, when the electric impulse and air pressure was applied thereto said pins or shafts would not immediately react to said pressure but was slow in releasing due to said poor alignment, rust, dirt, and lack of oil.' and moves that said language be stricken and physically purged and deleted from the petition on the ground that said language is vague and indefinite in that it is not alleged in said paragraph, or elsewhere in the petition, how or in what manner the supposed improper alignment of latching pins or shafts had any bearing on, or relation to, the proper opening of the door; it is not alleged where said latching pins or shafts, if any, fitted into the back door of the bus, or what the functions, if any, of said latching pins or shafts were; defendant is entitled to have such facts pleaded in order to properly prepare its defense; under the facts as alleged in paragraph 2 of count II as amended there is no way to ascertain what connection, if any, the pins or shafts had with the negligent operation of the door. 4. Defendant demurs specially to subparagraph (a) of paragraph 4 of count II of the petition as amended and moves that the same be stricken and physically purged and deleted from the petition on the ground that said allegation is a mere conclusion of the pleader unsupported and unsubstantiated by the pleaded facts in that it is not alleged how long prior to the accident said defect existed, nor whether or not the defendant had sufficient opportunity to learn of the defect prior to the accident, nor that the defendant actually knew of said defect prior to the accident; construing the allegations of paragraph 2 of count II of the petition as amended most strongly against the pleader it appears that the defect set forth therein, if said allegations amount to a defect, constitutes a latent or hidden defect and, in the absence of allegations to the effect that the defendant had some notice of the latent defect or improperly failed to discover and repair the defect, no allegation of negligence as to this defendant is set out in said subparagraph. 5. Defendant demurs specially to subparagraph (a) of paragraph 4 of count II of the petition as amended and moves that the same be stricken and physically purged and deleted from the petition on the ground that said subparagraph is irrelevant, immaterial and prejudicial in that said subparagraph fails to disclose the violation of any legal duty owed to the plaintiff's wife by the defendant, did not in any way affect the legal rights, obligations and relations of the plaintiff to the defendant, constitutes no proper basis for any claim of the plaintiff against the defendant, were calculated to confuse and mislead the jury, and inflammatory and prejudicial to the defendant; said subparagraph is not based upon any specific facts contained anywhere in the petition which show that the defendant negligently maintained and operated an unsafe rear door or door-release system on one of its buses; although it is alleged that the door or door release system is defective, the specific facts as set forth in the petition do not show that the door or release was unsafe in any manner or that if the door was manipulated in its proper, usual and customary manner there would have been any injury to the plaintiff's wife. 6. Defendant demurs specially to subparagraph (b) of paragraph 4 of count II of the petition as amended and moves that the same be stricken and physically purged and deleted from the petition on the ground that said allegation is a mere conclusion of the pleader unsupported and unsubstantiated by the pleaded facts in that it is not alleged how long prior to the accident said defect existed, nor whether or not the defendant had sufficient opportunity to learn of the defect prior to the accident, nor that the defendant actually knew of said defect prior to the accident; construing the allegations of paragraph 2 of count II of the petition as amended most strongly against the pleader it appears that the defect set forth therein, if said allegations amount to a defect, constitutes a latent or hidden defect and, in the absence of allegations to the effect that the defendant had some notice of the latent defect or improperly failed to discover and repair the defect, no allegation of negligence as to this defendant is set out in said subparagraph. 7. Defendant demurs specially to subparagraph (b) of paragraph 4 of count II of the petition as amended and moves that the same be stricken and physically purged and deleted from the petition on the ground that said subparagraph is irrelevant, immaterial and prejudicial in that said subparagraph fails to disclose the violation of any legal duty owed to the plaintiff's wife by the defendant, did not in any way affect the legal rights, obligations and relations of the plaintiff to the defendant, were calculated to confuse and mislead the jury, and were inflammatory and prejudicial to the defendant; said subparagraph is not based upon any specific facts contained anywhere in the petition which show that the defendant negligently maintained and operated an unsafe rear door or door-release system on one of its buses; although it is alleged that the door or door-release system is defective, the specific facts as set forth in the petition do not show that the door or release was unsafe in any manner or that if the door was manipulated in its proper, usual and customary manner there would have been any injury to the plaintiff's wife. 8. Defendant demurs specially to subparagraph (c) of paragraph 4 of count II of the petition as amended and moves that the same be stricken and physically purged and deleted from the petition on the ground that said allegation is a mere conclusion of the pleader unsupported and unsubstantiated by the pleaded facts in that it is not alleged how long prior to the accident said defect existed, nor whether or not the defendant had sufficient opportunity to learn of the defect prior to the accident, nor that the defendant actually knew of said defect prior to the accident; construing the allegations of paragraph 2 of count II of the petition as amended most strongly against the pleader it appears that the defect set forth therein, if said allegations amount to a defect, constitutes a latent or hidden defect and, in the absence of allegations to the effect that the defendant had some notice of the latent defect or improperly failed to discover and repair the defect, no allegation of negligence as to this defendant is set out in said subparagraph. 9. Defendant demurs specially to subparagraph (c) of paragraph 4 of count II of the petition as amended and moves that the same be stricken and physically purged and deleted from the petition on the ground that said subparagraph is irrelevant, immaterial and prejudicial in that said subparagraph fails to disclose the violation of any legal duty owed to the plaintiff's wife by the defendant, did not in any way affect the legal rights, obligations and relations of the plaintiff to the defendant, were calculated to confuse and mislead the jury, and were inflammatory and prejudicial to the defendant; said subparagraph is not based upon any specific facts contained anywhere in the petition which show that the defendant negligently maintained and operated an unsafe rear door or door-release system on one of its buses; although it is alleged that the door or door-release system is defective, the specific facts as set forth in the petition do not show that the door or release was unsafe in any manner or that if the door was manipulated in its proper, usual and customary manner there would have been any injury to the plaintiff's wife. 10. Defendant demurs specially to subparagraph (d) of paragraph 4 of count II of the petition as amended and moves that the same be stricken and physically purged and deleted from the petition on the ground that said allegation is a mere conclusion of the pleader unsupported and unsubstantiated by the pleaded facts in that it is not alleged how long prior to the accident said defect existed, nor whether or not the defendant had sufficient opportunity to learn of the defect prior to the accident, nor that the defendant actually knew of said defect prior to the accident; construing the allegations of paragraph 2 of count II of the petition as amended most strongly against the pleader it appears that the defect set forth therein, if said allegations amount to a defect, constitutes a latent or hidden defect and, in the absence of allegations to the effect that the defendant had some notice of the latent defect or improperly failed to discover and repair the defect, no allegation of negligence as to this defendant is set out in said subparagraph. 11. Defendant demurs specially to subparagraph (d) of paragraph 4 of count II of the petition as amended and moves that the same be stricken and physically purged and deleted from the petition on the ground that said subparagraph is irrelevant, immaterial and prejudicial in that said subparagraph fails to disclose the violation of any legal duty owed to the plaintiff's wife by the defendant, did not in any way affect the legal rights, obligations and relations of the plaintiff to the defendant, were calculated to confuse and mislead the jury, and were inflammatory and prejudicial to the defendant; said subparagraph is not based upon any specific facts contained anywhere in the petition which show that the defendant negligently maintained and operated an unsafe rear door or door-release system on one of its buses; although it is alleged that the door or door-release system is defective, the specific facts as set forth in the petition do not show that the door or release was unsafe in any manner or that if the door was manipulated in its proper, usual and customary manner there would have been any injury to the plaintiff's wife. 12. Defendant demurs specially to subparagraph (d) of paragraph 4 of count II of the petition and moves that the same be stricken and physically purged and deleted from the petition on the ground that the language of said subparagraph (which is a specific allegation of negligence) is specifically contradicted by the facts pleaded in paragraph 2 of count II and by paragraph 8 of count I which is incorporated into count II; the facts alleged in paragraph 2 of count II and paragraph 8 of count I (adopted in paragraph 1 of count II) show unequivocally that the door on the bus did release and open after the plaintiff's wife pushed thereon. Wherefore, defendant prays that each and every one of its special demurrers be inquired of by the court and that the same be sustained and that the objectionable language demurred to be physically purged and deleted from the petition, as amended, and that the court enter an order requiring petitioner to rewrite the petition with said objectionable language omitted therefrom."
The defendant filed a motion to dismiss count I of the petition on the ground that same did not set forth a cause of action. The court overruled the motion to dismiss and overruled the general and special demurrers. It is on this judgment that the case is here for review.
A common carrier has the duty to exercise extraordinary care to protect passengers on its vehicle. See McBride v. Ga. Ry. Electric Co., 125 Ga. 515, 516 ( 54 S.E. 674), and Beardsley v. Suburban Coach Co., 83 Ga. App. 381 ( 63 S.E.2d 911). There are numerous other decisions to the same effect.
Counsel for the defendant relies on the theory that the plaintiff's wife did not use proper care for her own safety; that she could have asked the operator to check the door to see what was wrong; that she could have used the front door as a means of egress; that she used excessive force to open the back door and thus she was the author of her own injury. Counsel cites Mansfield v. Richardson, 118 Ga. 250 (3) ( 45 S.E. 269) wherein the Supreme Court said: "In cases of personal injuries, the plaintiff as a conscious human agent is bound to exercise ordinary care to avoid the consequences of the defendant's negligence, by remaining away, going away, or getting out of the way of a probable or known danger." In Bessman v. Greyhound Bus Depot of Atlanta, 81 Ga. App. 428, 429 ( 58 S.E.2d 922) this court said: "Ordinarily, questions of negligence and proximate cause are for determination by a jury, but it is the duty of the courts to decide such questions as a matter of law on demurrer in clear and indisputable cases." The following cases hold that a person must use ordinary care to avoid injury to his or her person: City of Columbus v. Griggs, 113 Ga. 597 ( 38 S.E. 953, 84 Am. St. R. 257); Simmons v. Seaboard Air-Line Ry., 120 Ga. 225, 227 ( 47 S.E. 570, 1 Ann. Cas. 777); Taylor v. Morgan, 54 Ga. App. 426 (2) ( 188 S.E. 44), and Fricks v. Knox Corporation, 84 Ga. App. 5 ( 65 S.E.2d 423). This position is not well taken. We hold that the record does not disclose as a matter of law that the plaintiff's wife did not use ordinary care for her own safety but that such is a jury question.
As to whether or not the operator of the bus knew or reasonably was charged with knowledge that the act or omission involved danger to the plaintiff's wife, the record does not disclose that the operator of the bus was not fully cognizant of the alleged rusty condition of the mechanism of the bus he operated. Rust requires the lapse of time to form and a jury question is presented as to whether or not this defect should have been discovered. However, in view of the allegation that he knew, or in the exercise of ordinary care should have known, of these and other facts alleged in the petition, this amounts to no more than an allegation of constructive knowledge.
It is alleged that there was a written sign over the door requiring a passenger to push on the door; that when the plaintiff's wife pushed on the door, the door did not open; that she pushed a second time, then pushed a third time; that the last time she pushed, the operator of the vehicle released a mechanism which opened the door. While there is no allegation that the bus driver knew that the passenger was having trouble with the door, in the exercise of extraordinary care toward a passenger, a jury would be authorized to find such bus driver lacking in the exercise of extraordinary care who committed an act that might result in jury to a passenger attempting to alight from the bus, whether the driver actually knew that the passenger was attempting to alight or not. A jury would be authorized to find it to be the duty of the driver to determine if a passenger is attempting to alight after a signal had been given for the bus to stop for that purpose, and, if only one signal was given and a passenger was attempting to alight at the front door, where the bus driver could see without turning around, a jury would be authorized to find such bus driver negligent toward another passenger attempting to alight from the back door, such driver knowing that the bus has two doors for this purpose.
Under the allegations of the petition, the questions presented here should be determined by a jury.
The trial court did not err in denying the motion to dismiss the petition. No error appears in the overruling of the general and special demurrers to any portion of the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
ON REHEARING
The decision in this case constitutes an adjudication that each count of the petition is sufficient to state a cause of action against the defendant for failure of the latter to exercise extraordinary care for the safety of one of its passengers, and that neither count is subject to general demurrer on the ground that the petition shows on its face that the plaintiff failed to exercise ordinary care for her own safety. Both counts show the same factual situation — that the plaintiff, attempting to alight from the rear door, pushed twice and the door failed to open; that she pushed a third time "with all her strength" and the door flew wide open, causing her to fall out onto the curb. Negligence in maintaining a defective mechanism is alleged as the cause of injury in one count and negligence of the operator in opening the door is alleged as the cause of injury in the other count. If the injury is shown to have happened as alleged, the plaintiff might recover upon proof of either or both of these acts of negligence.
It is strongly contended that had the plaintiff not pushed three times, and pushed so hard, she would not have been injured, and that this constituted a lack of due care on her part and also constituted the proximate cause of her injuries to the exclusion of any negligence on the part of the defendant, notwithstanding the allegation in both counts of the petition that there was a sign above the door directing passengers seeking to leave the bus to so push. Both of these positions, however, may be true as a matter of fact but this court cannot hold either to be true as a matter of law. If one pushes against a door which is supposed to yield and does not, whether an ordinarily prudent person would simply think the door was hard to move and use greater force to move it, or whether such person would expect it to suddenly yield and spring back is an issue of fact under all the circumstances of the case. Of the Georgia cases cited by the plaintiff in error, Pacetti v. Central of Ga. Ry Co., 6 Ga. App. 97 ( 64 S.E. 302), a "door case," supports the position taken here. There the plaintiff was crowded against a gate at the moment when the gatekeeper was about to open it; he proceeded to unlatch the gate and thereby injured the plaintiff's hand, and it was held that whether the plaintiff in the exercise of ordinary care should have placed her hand on the gate at the time when the keeper was unlatching it was a jury question. Here the duty to push the door open was on the plaintiff herself, but the door gave way under her pressure in an unexpected manner, allegedly the result either of the driver in fact opening the door himself through a release mechanism, or because of a faulty condition of the door itself. No case cited by the plaintiff in error is so similar on its facts as to be controlling here. The rule in negligence cases is that each must stand on its own bottom, and that where reasonable minds might differ, either as to the proximate cause, the degree of negligence of the defendant. or the contributory negligence of the plaintiff, such case should be decided by a jury and not by the court. Townley v. Rich's, Inc., 84 Ga. App. 772 ( 67 S.E.2d 403); Southern Stages v. Clements, 71 Ga. App. 169 ( 30 S.E.2d 429); Ga. Power Co. v. Blum, 80 Ga. App. 618 ( 57 S.E.2d 18).