WHEELER TRANSPORTATION CO., INC. v. Katzoff

Horney, J., delivered the opinion of the Court. Dann T. Katzoff (plaintiff-appellee) brought suit to recover ⁴³³ damages for the injuries he received when he was struck by a school bus owned by the Wheeler Transportation Company and operated by Robert H. Williams (defendants-appellants). The case was tried by a jury. At the close of all the evidence, the plaintiff moved for a directed verdict in his favor on the ground that he, not having contributed to the happening of the accident, was entitled to a judgment as a matter of law.

The trial court denied the motion and submitted the case to the jury which returned a verdict in favor of the defendants. The plaintiff then moved for a judgment n.o.v., or, in the alternative for a new trial. The court, in granting the motion, entered a judgment in favor of the plaintiff as to liability and awarded a new trial as to damages, and this appeal followed. The accident occurred on the one-way street on which the plaintiff resided.

The street, running generally north and south, was wide enough (between twenty-seven and twenty-nine feet) to accommodate the parking of automobiles on both sides and leave room for a moving lane of traffic between them. At the time of the accident, the plaintiff, being unable to find a parking place in front of his house in the east side of the street had parked his automobile on the west side, where parking was not permitted, for the purpose of unloading some building material tied to the top of the vehicle. At approximately the same time, the school bus, with several children riding therein, was being operated in a southerly direction on the same street. The day was bright and clear and there was nothing to obstruct the view between the standing automobile and the oncoming school bus.

According to the plaintiff, he got out of the right side of his automobile and, having looked for traffic and seen none, proceeded around the rear of the automobile to the left side to untie a rope fastened to the door handle; while he was untying the rope, he heard a noise, looked up and saw the school bus, which was then two or three “doors” or about forty feet away, bearing down on him; he shouted and put his right hand up, with the palm outward, to indicate that the bus driver should stop, but he kept on coming, with the bus swaying and careening, and without reducing his speed, estimated by the plaintiff at about thirty miles an hour; on seeing the bus continue to ⁴³⁴ approach him, the plaintiff made an effort to get in front of his automobile, but being unable to do so he squeezed as close as he could to the side of it; and as the bus passed through the space between the plaintiff’s automobile and the vehicles parked on the opposite side of the street, it struck the plaintiff, fracturing his pelvis, and then continued on three car lengths before it stopped. According to the operator of the school bus, he saw the plaintiff along side of the automobile and brought the bus to a dead stop about three car lengths from where the plaintiff was standing in the street; he then saw the plaintiff walk toward the back of his automobile and beckon him on with a wave of the hand; although he could not see the plaintiff along side of the bus, he, believing that the plaintiff had gone on to the pavement, “pulled” the bus off in first gear at a speed of from five to ten miles per hour and as he was doing so, he heard a bump along the side of the bus and stopped about three car lengths past the point of impact; finally, after alternately embracing, rejecting and reembracing a handwritten statement he had given the plaintiff about two months after the accident as to what caused it, he admitted that when the bus was moving forward, the back end had a tendency to run sideways and veer to the right and that he had no control over handling it. The trial judge, after refusing to grant a directed verdict for the plaintiff, undertook to instruct the jury as to what he then thought were the respective rights of the plaintiff and defendants and submitted the questions of primary and contributory negligence to the jury. When, however, the plaintiff moved for a judgment n.o.v., or, in the alternative for a new trial, the judge, stating that he was “convinced that the verdict of the-jury was against the overwhelming weight of the evidence,” granted the motion for a judgment n.o.v. as to liability and a new trial as to damages because he believed he had made two errors (besides erring in refusing the motion of the plaintiff for a directed verdict at the conclusion of the trial) in the instructions to the jury: (1) in denying the requested instruction of the plaintiff to the effect that there was no legally sufficient evidence to prove that the plaintiff was guilty of any contributory negligence; and (2) in granting the requested instruction of the defendants based ⁴³⁵ on the premise that the traffic lane, through which the bus passed, was so narrow that there was insufficient room for both the plaintiff and the bus to be in the same part of the lane at the sanie time.

The primary question presented by the appeal is whether the trial court erred in granting the motion for judgment n.o.v. as to liability. A minor problem concerns the