Opinion
51700.
ARGUED JANUARY 13, 1976.
DECIDED FEBRUARY 5, 1976. REHEARING DENIED FEBRUARY 17, 1976.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
W. C. Dominy, Robert T. Efurd, Jr., for appellant.
Hansell, Post, Brandon Dorsey, Jule W. Felton, Jr., Paul Oliver, for appellee.
1. Where a passenger sues a common carrier for its alleged negligence the statutory presumption of carrier's negligence terminates upon rebuttal evidence as to defendant's exercise of due care so that the question of negligence is then for the jury.
2. Any error in excluding evidence relative to expenses incurred in treatment affords no basis for reversal where the jury finds for defendant on the issue of liability.
3. A passenger plaintiff suing a common carrier has the duty to exercise ordinary care for his own safety.
ARGUED JANUARY 13, 1976 — DECIDED FEBRUARY 5, 1976 — REHEARING DENIED FEBRUARY 17, 1976 — CERT. APPLIED FOR.
Plaintiff sued the Atlanta Transit Systems, Inc. for injuries which she received from a fall when she alighted from a bus at a location on Auburn Avenue near Peachtree Street. She testified her injuries were received upon descending at an unsafe stop where the pavement was broken and that this occurred at an early morning hour when the light was insufficient for her to observe the condition of the pavement. The defendant driver's testimony contradicted plaintiff in every material respect. The jury returned a verdict for defendant Transit Company. This appeal is from the denial of plaintiff's motion for new trial. Held:
Atlanta has 28 streets bearing the name of Peachtree (spelled as one word); none of those thoroughfares contains a peach tree except in containers placed in front of commercial establishments.
1. Appellee's counsel has correctly dealt with plaintiff's contentions on the first three enumerations alleging error in the trial court's overruling of the general grounds of the new trial motion. Therefore, we adopt that section of appellee's brief: (For convenience we omit quotation marks and delete argumentative portions.)
Appellant, who was plaintiff in the trial court, contends that the appellee — defendant below — is a common carrier required to exercise extraordinary diligence by Code § 18-204. It is further the appellant's contention that having proved injury to appellant-passenger, Code § 68-710 raised the presumption that appellee carrier failed to exercise extraordinary care. Relying on the proposition that the presumption is rebutted only by proof that appellee exercised extraordinary diligence, appellant asserts:
"[T]here is absolutely nothing in his testimony that would indicate that the defendant exercised extraordinary diligence. Plaintiff contends that extraordinary diligence would be something like the driver getting off the bus and helping the ladies down." (Appellant's brief, pp. 5, 6).
However, appellant is in error with respect to the quantum of evidence necessary to rebut the presumption created pursuant to Code § 68-710. Appellant's formulation would place the entire burden of proof of plaintiff's claim upon the defendant; that is not the purpose of the statute. The purpose and operation of the statute is clearly stated in McVeigh v. Harrison, 68 Ga. App. 316, 319 ( 22 S.E.2d 752) as follows:
"The purpose of the statute was to create an inference and cast upon the defendant carrier the duty of producing some evidence to the contrary, and as we have seen when that is done the inference is at an end and the question of negligence becomes one for the jury upon all the evidence."
The court also stated at p. 317 that "The foregoing section [Code § 68-710] has served its purpose when it compels the railroad company [common carrier] to explain how the injury occurred, and the question of negligence is then to be decided by the facts of the case." See also Brown v. Kirkland, 108 Ga. App. 651 ( 134 S.E.2d 472).
The rebuttal evidence showing defendant's due care with respect to the alleged negligence is clearly sufficient to terminate the inference created by Code § 68-710. Consequently, the question of negligence was for the jury under all the evidence.
Appellant further contends that extraordinary diligence would require the driver to get off the bus and help the ladies down. However, the general rule is to the contrary:
"Ordinarily a common carrier of passengers by streetcar or other conveyance on city streets discharges its legal duty to a passenger when it deposits him at a usual and reasonably safe place for alighting and crossing the street..." Locke v. Ford, 54 Ga. App. 322 (3) ( 187 S.E. 715). See also Ga. F. R. v. Thigpen, 141 Ga. 90 (1a) ( 80 S.E. 626).
In the present case, plaintiff neither alleged nor proved any special circumstances which would raise any duty of defendant to physically assist the plaintiff's departure from the bus. The question in any event was for the jury:
"Whether in a given case the circumstances are such as to suggest the necessity of assisting a passenger to board or alight from a train or car is a question to be determined by the jury." Metts v. Louisville c. R. Co., 52 Ga. App. 115, 117 ( 182 S.E. 531).
2. Appellant's fourth enumeration asserts that certain bills for medical services rendered to plaintiff were erroneously excluded. As the jury returned a verdict for defendant on the issue of liability, "any error in the admission or exclusion of evidence relative to the injuries or damages, their extent, or expenses incurred in their treatment, was harmless and affords no ground for reversal. Stubbs v. Greyhound Lines, Inc., 116 Ga. App. 58 (2) ( 156 S.E.2d 474), and see cases collected in Maloy v. Dixon, 127 Ga. App. 151, 156 ( 193 S.E.2d 19), footnote 2." Parham v. Roach, 131 Ga. App. 728, 730 (1) ( 206 S.E.2d 686).
3. The remaining enumeration argues that the contributory negligence rule is not the same in passenger versus common carrier cases as it is in other tort cases because of the carrier's duty to exercise extraordinary diligence. This argument has no merit. The duty to exercise extraordinary care which is imposed upon common carriers as defendants does not abrogate the requirement which a tort plaintiff has under Code § 105-603 to exercise ordinary care for his own safety to avoid the consequences caused by the defendant's negligence.
Judgment affirmed. Bell, C. J., and Stolz, J., concur.