Greyhound Lines, Inc. v. Kunze (41 Ohio App. 508, 1932)

Richards, J.

This is a personal injury case which resulted in a verdict of $500 in favor of the plaintiff below, Margaret Kunze. On the rendition of the verdict, the defendant, the Greyhound Lines, Inc., moved the court for the entry of a judgment in its favor notwithstanding the verdict, and also moved the court to enter judgment in its favor upon the special findings of the jury, on the ground that such findings were inconsistent with the general verdict. The plaintiff, Margaret Kunze, filed a motion for a new trial on the ground that the verdict was inadequate, and against the weight of the evidence, and for other errors of law occurring at the trial. The court overruled the company’s motion for a judgment notwithstanding the verdict and also its motion for a judgment in its favor on the special findings. Thereafter the case came on for hearing on the motion of plaintiff for a new .trial, and the court, on consideration, granted the same on the ground that the verdict was inadequate, and against the weight of the evidence as to amount. The trial judge had theretofore overruled the defendant’s motion made at the close of all the evidence to direct the jury to return a verdict in its favor. The defendant below, Greyhound Lines, Inc., prosecutes error.

The facts may be briefly stated. The plaintiff was a passenger on a bus operated by the defendant, traveling from Wakeman, Ohio, to Detroit, Michigan. On the journey some trouble developed in the operation of the bus, and it was finally discovered that the bus was on fire beneath the place occupied by the passengers. To remedy this trouble the operator of the bus, while traveling along the McPherson highway, drove on to the north side of the road and stopped the bus a short distance west of Clyde. It was then after dark, and he ordered all the passengers to get out and take their baggage with them, with which order they hurriedly complied, most of the passengers taking a position on the north side of the bus off the traveled portion of the highway. The driver of the bus procured a fire extinguisher and undertook to extinguish the fire, but had some difficulty in doing so. While the passengers were standing about watching his efforts to extinguish the fire, he gave a peremptory order for everybody to stand back. The plaintiff, in stepping back to comply with the order, fell over a suitcase belonging to one of the passengers, breaking one of her legs. She herself had no baggage with her.

It is earnestly contended by counsel for Margaret Kunze that, as the court granted her motion for a new trial, no final order was made. This court cannot agree with that contention, as the order overruling the company’s motion to enter judgment in its favor on the special interrogatories constitutes a final order to which error may be prosecuted. Central Gas Co. v. Hope Oil Co., 113 Ohio St., 354, 149 N. E., 386. In that case a motion for a new trial was granted as asked by the defendant below, notwithstanding which it successfully prosecuted error to the refusal of the court to grant a judgment upon special findings of fact claimed to be inconsistent with the general verdict. In the case at bar the first interrogatory read as follows: “Was the defendant guilty of any negligence directly causing plaintiff’s injuries?” This interrogatory was answered “yes” by the jury. The second interrogatory was: “If so, of what did that negligence consist?” Answer: “ (1) In failing to see that the baggage was so placed that the passengers would be safe. (2) In giving sudden and peremptory orders to plaintiff and the other passengers to stand back, away from said bus.”

It is well established that the conflict between special findings and a general verdict must be clear and irreconcilable or tbe court will not be justified in disregarding the general verdict on the ground of inconsistency. Davis v. Turner, 69 Ohio St., 101, 68 N. E., 819. We do not think the answers to these interrogatories are clearly and irreconcilably in conflict with the general verdict. The answer to the second interrogatory is consistent with a conclusion by the jury that the bus driver was negligent in knowingly allowing the baggage to be improperly placed so as to endanger the passengers, and then giving a sudden and peremptory order to them to stand back. In view of the fire under the bus, the passengers may have believed that an explosion was imminent, and that the order was given to protect them therefrom and required instant compliance. No error was committed in overruling the motion to enter judgment on the special findings, nor was any error committed in overruling the motion to enter judgment for the defendant on the pleadings, the negligence charged in the petition being in substance the same as disclosed in the special findings.

There remains for disposition the alleged error in overruling the motion made at the conclusion of the evidence to direct the jury to return a verdict in favor of the company. It must be remembered that the plaintiff was a passenger en route from Wake-man to Detroit, and that no fault of hers caused the temporary break in the journey, resulting in the passengers being ordered from the bus with their baggage. After alighting in the dark, in strange surroundings, they were in a sense under the control of the bus driver, and the company still owed them care. The conditions were such as to raise an issue for the jury as to whether that care was exercised which the circumstances required.

Complaint is made that the court erred in instructing the jury as to the degree of care required of the company, but, as a new trial has been granted, this question is not before the court for decision.

For the reasons given the judgment will be affirmed.

Judgment affirmed.

Lloyd and Williams, JJ., concur.