#### GERALDINE G. GARVEY v. ATLANTIC GREYHOUND CORPORATION.

(Filed 19 November, 1947.)

1. Carriers. § 21b — Evidence held sufficient for jury in action by passenger injured in fall from, moving bus.

Plaintiff’s evidence tended to show that the bus in which she was riding as a passenger passed several cars traveling in the same direction upgrade, pulled out of the line of traffic to pass another car, but that the driver, apparently seeing a car approaching from the opposite direction, applied his brakes in order to get back in the line of traffic, then quickly accelerated his speed and turned sharply to the left to follow the curve of the road, and that the bus was traveling 40 to 60 miles per hour when it entered the curve.' Plaintiff’s evidence further tended to show that the door-securing mechanism was defective to the actual or constructive knowledge of defendant, and that the peculiar movements of the bus caused plaintiff, who was standing in the aisle immediately back of the driver, to fall forward, where, to save herself, she caught hold of the rod of the door-securing mechanism, loosening it, then to fall backward, and then, when the bus turned to the left around the curve, to fall out of the bus through the door which had flown open. Held: Defendant’s motions to nonsuit were properly refused, there being sufficient evidence of negligence on the part of the carrier to be submitted to the jury and the evidence being insufficient to establish contributory negligence as a matter of law on the part of the passenger.

2. Carriers § 21a (1) —

While a carrier is not an insurer of the safety of passengers whom it undertakes to transport, it does owe them the duty of exercising the highest degree of care for their safety consistent with the practical operation and conduct of its business.

3. Automobiles § 18i—

Where plaintiff’s evidence tends to show that the driver was operating-defendant’s bus at a rate of 40 to 50 miles an hour in heavy traffic around a curve on an upgrade, an instruction that a speed of 45 miles per hour, rather than a charge that a speed in excess of 45 miles per hour, is prima facie evidence that the speed is unlawful, is held not prejudicial in view of the statutory requirement to reduce speed below the prima facie limits prescribed in traversing a curve or when special hazards exist with respect to other traffic. G. S., 20-141, prior to amendment by Chap. 1067, Sec. 12, Session Laws of 1947.

*167Appeal by defendant from Carr, J., at June Term, 1947, of Waice.

No error.

Tbis was an action to recover damages for a personal injury resulting from a fall from one of defendant’s buses, alleged to Lave been caused by tbe negligence of tbe defendant.

It was not controverted tbat on tbe occasion alleged, to wit: 16 October, 1946, about 10 :30 p.m., tbe plaintiff was a passenger on defendant’s bus en route from Raleigb to ber borne near Clayton, N. C.; tbat tbe bus was being operated on regular schedule by defendant’s driver, and tbat plaintiff suffered a serious and permanent injury as result of being thrown or falling from tbe moving bus, though tbe defendant denied tbat it was negligent in any manner complained of, or tbat plaintiff’s injury proximately resulted therefrom. Contributory negligence also was pleaded by tbe defendant.

In support of ber allegations of negligence tbe plaintiff offered evidence tending to show tbat tbe circumstances and causes of ber injury were substantially these: Plaintiff was a passenger on defendant’s bus which left Raleigb about 10 :15 p.m. traveling east on Highway 70. Tbe bus was crowded when it left Raleigb with all seats occupied and 12 or 15 persons standing in tbe aisle. Plaintiff secured a seat next to tbe aisle and immediately in rear of tbe bus driver. Shortly before she reached ber destination she gave ber seat to Mrs. Lassiter, whom she knew to be employed on a night shift in a mill, and stood in tbe aisle at tbe front, back of tbe white line, leaning against tbe front seat on tbe right and bolding tbe rail which extended over tbe panel or shield protecting tbe front of tbe first seat. She was within 18 inches or two feet of tbe driver, and to bis right and rear. It does not affirmatively appear tbat any other person was standing in tbe aisle at tbis time. The driver bad bis face turned to bis left and was conversing with passengers behind him. Tbe traffic on tbe highway was unusually heavy incident to State Fair week in Raleigb. Tbe bus was behind schedule on account of frequent stopping to discharge and receive passengers, and was being driven at times 60 miles per hour, passing cars, in and out tbe line of traffic. Going east between Auburn and Clayton, and approaching tbe locality of tbe accident, there was a dip in tbe contour of tbe road, with an upgrade on tbe east side, culminating in a sharp curve to tbe left near tbe crest of tbe grade. In traversing tbis portion of tbe road and up tbis grade, tbe bus passed three ears going in tbe same direction and then pulled out of line to pass another, when, apparently, tbe driver observed a car approaching in tbe west bound lane and applied bis brakes in order to enable him to get back in line, and then quickly accelerating bis speed suddenly lunged forward and turned sharply to tbe left to follow tbe curve in tbe road. Tbe result of these maneuvers was first to throw *168tbe plaintiff forward, causing ber to lose ber bold on tbe rail and to topple and fall forward on tbe platform or well wbicb was six or eight inches lower than tbe aisle. To save herself she caught bold of tbe rod which connects tbe lever near tbe steering wheel with tbe mechanism for opening and closing tbe right front door of tbe bus. Due to tbe defective condition of this mechanism tbe door fastening was loosened by tbe pressure on this rod, and as tbe bus immediately jerked forward plaintiff was thrown back and endeavored to catch tbe rail on tbe panel in front of tbe right front seat, and then as tbe bus turned sharply to tbe left on tbe curve, tbe door was thereby caused to open and tbe plaintiff was thrown out to tbe ground. Her leg was run over and crushed by tbe rear wheels of tbe bus and bad to be amputated. According to plaintiff’s evidence tbe driver was oblivious of these happenings and bad to be called twice to make him aware that one of bis passengers bad fallen from tbe bus. Tbe bus ran 97 steps or yards before it was stopped. There was evidence that tbe bus in taking this curve (wbicb a witness described as tbe worst curve between Raleigh and Clayton) was traveling forty to fifty miles per hour. Tbe defect in tbe door-securing apparatus of tbe bus was explained to tbe jury by a witness acquainted with its construction. This witness, who bad been seated on tbe right front seat of bus with two others, testified be bad previously noticed tbe mechanism was loose and would not bold tbe door against an ordinary jar, and that its condition was such that tbe driver could have observed it. Another witness bad seen a bus door fly open on another occasion, though defendant’s driver said that was not on tbe same bus.

On tbe other band, tbe defendant’s evidence ■ tended to show entire absence of negligence on its part in any respect alleged about wbicb testimony was offered, or that there was anything unusual in tbe operation 'of tbe bus. Defendant’s evidence tended to show tbe bus was being driven carefully, was not late, and that immediately prior to tbe accident tbe speed was 40 to 45 miles per hour. Defendant’s witnesses testified plaintiff was standing up with her purse and a small bundle under ber left arm, and that she fell or stumbled forward, and got bold of tbe door rod and tbe door came open. Tbe driver said be saw ber fall, but, being occupied with operation of tbe bus, was unable to do anything but pull over carefully to tbe side of tbe road and stop; that be went only 25 yards before stopping. He did not know what caused ber to fall; that be bad not put on brakes or given tbe bus a jolt or lurch; that be did not recall passing any cars immediately beforehand, and was in tbe line of traffic; was not talking. He further testified that at tbe point where plaintiff caught bold of the rod, if it is pulled back bard enough tbe door will open, and further that there was no defect in tbe mechanism.

In response to issues submitted tbe jury returned verdict in favor of plaintiff, finding that plaintiff was injured by tbe negligence of tbe *169defendant, that she did not by her own negligence contribute to her injury, and assessing damages in sum of $27,500. From judgment on the verdict defendant appealed, assigning errors.

Bunn & Arendell and Thos. W. Ruffin for plaintiff, appellee.

Ehringhaus & Ehringhaus for defendant, appellant.

Devin, J.

Defendant’s appeal from an adverse judgment below presents at the outset the question whether plaintiff’s evidence was sufficient to make out a case of actionable negligence on the grounds alleged. Error is assigned in the denial of defendant’s motion for judgment of nonsuit and in the refusal of the court to give peremptory instructions in its favor as requested.

However, giving to the plaintiff’s evidence that favorable consideration required under the rule as against a demurrer (Nash v. Royster, 189 N. C., 408, 127 S. E., 356), we conclude she has offered evidence of negligence in respect to the manner of operation of defendant’s bus on the occasion of her injury and in respect to the maintenance of the door fastening for the protection of passengers, and that her injury proximately resulted therefrom, and that this evidence is of sufficient probative value to withstand defendant’s motions. “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” Lavender v. Kurn, 327 U. S., 645.

Considering plaintiff’s testimony and that of her witnesses, together with the inferences reasonably deducible therefrom, in the light favorable to her, it would seem that the injury of which plaintiff complains resulted from being thrown from the defendant’s swiftly moving bus, and that the violent motions of the bus as detailed, due to improper operation, caused her to lose her balance and fall forward on the platform and caused the inadequately secured door to become unfastened and fly open, subjecting plaintiff to the centrifugal force of the motion of the bus in traversing a sharp left curve, and that in consequence she was swept out of the open door of the bus to the ground, and injured.

Further, we think the evidence susceptible of the inference that the attempt of the driver of the bus to pass a car just before reaching the curve and the necessity of a quick turn to the right to avoid an oncoming car and regain the line of traffic and then to follow the curve to the left, tended to accentuate the sharpness of the turns required to be made, first to the right and then to the left, and to increase the centrifugal pull of the bus and occupants to the right in order to follow the perimeter of the curve.

While the defendant in the operation of its bus would not ordinarily be held liable to a passenger for sudden jerking or jolting caused by *170changes of speed or direction incident to the operation of the bus on the highway in relation to the traffic then being thereon, we think the plaintiff’s evidence tends to go further and to show failure to exercise proper care, under the circumstances, and that defendant’s failure in the respects alleged was the proximate cause of the injury.

Note also must be taken of testimony tending to show the loosened condition of the door fastening mechanism, and this, together with evidence of improper operation of the bus, as showing causal connection between the negligence of the defendant in these respects and the injury complained of.

Also must be kept in mind, in considering the evidence on the issue of negligence, that while the carrier is not an insurer of the safety of passengers whom it undertakes to transport, it does owe them the duty of exercising the highest degree of care for their safety consistent with the practical operation and conduct of its business. White v. Chappell, 219 N. C., 652, 14 S. E. (2d), 843; Hollingsworth v. Skelding, 142 N. C., 246, 55 S. E., 212.

Nor do we think there was evidence of contributory negligence on the part of the plaintiff such as would justify a nonsuit on that ground. Whether she used due care under the circumstances was a question for the jury. Marzelle v. Mfg. Co., 227 N. C., 674, 44 S. E. (2d), 80; Watkins v. Raleigh, 214 N. C., 644, 200 S. E., 424; Cole v. Koonce, 214 N. C., 188, 198 S. E., 637.

The defendant’s motion for judgment of nonsuit was properly denied. While defendant’s evidence tended to throw a different light on the circumstances of this occurrence, and to relieve the defendant of the imputation of negligence, and also to show want of due care on the part of the plaintiff, the jury has accepted the plaintiff’s view of what happened and found the determinative facts in her favor.

The defendant assigns error in the court’s charge to the jury in respect to the statutory regulations of the speed of motor vehicles, for that in referring to G. S., 20-141, the court quoted the. statute as declaring that a speed of 45 miles per hour (outside the corporate limits of city or town) was prima facie evidence that the speed was not reasonable and prudent, and was unlawful, whereas the statute gives that prima facie effect only to speed in excess of the limit stated. This was inferentially corrected by the trial judge in his statement to the jury shortly afterward that it was “for the jury to say under all the facts and circumstances whether or not a speed in excess of 45 miles an hour is an unlawful speed, taking into consideration all the circumstances surrounding the operation of the motor vehicle.” And the court then quoted to the jury subsection 5 (c) of G. S., 20-141, which contains the provision that driving within the speed limits set out in the statute “shall not relieve *171the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to other traffic.” The defendant argues that the misstatement of the statute made by the court should be held substantial error in view of the conflicting evidence as to the speed of the bus, some witnesses putting it above, some below, and some at 45 miles per hour. However, we do not think this inadvertence on the part of the court was in any view harmful to the defendant. The speed of the bus in traversing the curve where the injury occurred was variously stated to be from 40 to 50 miles per hour, and the reference-to speed of 45 miles per hour under the circumstances shown in this case would not seem to be important, in view of the modifying clause of the statute quoted. So material is the application of this clause to questions of liability arising out of violation of statutory speed regulations where special hazards or unusual circumstances are shown that in Kolman v. Silbert, 219 N. C., 134, 12 S. E. (2d), 915, it was held for error that the trial court in that case charged the jury as to the speed limits fixed by the statute without calling attention to the clause above referred to. In the opinion by Justice Barnhill it was said: “Whether the speed law is 45 miles per hour depends upon the circumstances at the time. . . . That part of sec. 103 (now G. S., 20-141), which fixes the rate of speed that is lawful when no special hazards exists, is secondary, facilitating proof, and must at all times be considered with proper regard to its relation to the primary and fundamental provisions of the section.” We are unable to perceive any harmful result to the defendant consequent upon the court’s reference to speed limits now complained of.

It may be noted that this action arose before the speed regulations of G. S., 20-141, were amended by Chap. 1067, sec. 12, Session Laws 1947.

We have examined the other exceptions noted by defendant to the court’s instructions to the jury, and brought forward in the assignments of error, and find them without substantial merit.

After a careful examination of the entire record, we conclude that in the trial there was

No error.