This is an appeal from a judgment of dismissal entered at the close of the plaintiffs' case upon defendants' motion for involuntary nonsuit, challenging the sufficiency of the evidence to justify a verdict for the plaintiffs.
The action was brought to recover for personal injuries suffered by Mrs. Gentry when she was thrown from her seat on the defendants' bus, on which she was a paying passenger. The accident occurred at an intersection on Second avenue in Seattle, as the vehicle was proceeding from the Greyhound south depot to the depot at Eighth avenue and Stewart street.
Plaintiffs' evidence disclosed that Mrs. Gentry was reclining sideways, with her feet on the floor, on the long back seat of the bus by the left window and her husband was seated on the same seat by the window on the right side of the bus when the vehicle came to a stop at the intersection. Mr. Gentry was looking out of the window and observed that, when the light turned green and the bus began to proceed through the intersection, an unidentified automobile crossed on the red light in front of the bus, and that the operator brought the bus to a sudden halt to avoid a collision. The bus was holding up traffic, and as soon as the path was clear the operator started on across the intersection; and, in the words of Mr. Gentry, "he was driving normally."
In the meantime, Mrs. Gentry had been thrown from her seat onto the floor behind the seat in front of her. She did
When the bus reached the Stewart street depot, the plaintiffs reported the accident to the driver. According to his testimony, this was the first notice he had of the occurrence. The driver testified he did not remember making any sudden stops as he drove up Second avenue, although he searched his memory after talking with appellants at the terminal. He heard no fall, exclamation, or noise among his passengers. The passengers had all left the bus when the plaintiffs approached him, and he was unable to secure the names of any witnesses. None of the passengers, other than the plaintiffs, testified at the trial.
Mrs. Gentry seeks damages only for the injuries which were the result of the jostling from the lurching of the bus while she was attempting to regain her feet after her initial fall.
Mrs. Gentry was down on the floor behind one of the rear seats, and a glance in the rear-view mirror could not have revealed her position to the driver. She did not get out into the aisle, and her husband did not rise to help her until after her second fall. If the operator had observed her then, it would have been after all of her injuries had occurred. She did not cry out nor notify the driver in any way that she had fallen or was having difficulty getting up. He was unaware
The bus was halted in the middle of an intersection with traffic pressing from behind. Could a jury reasonably infer that, after a stop which was not violent enough to disturb a man seated in an upright position, the driver was negligent in proceeding in a normal way when a glance in the mirror would not have revealed a passenger on the floor behind the seats, and he had not been given any notice that an accident had occurred? The law does not require one to look and see what is not there for him to see, nor does it require an operator of a conveyance to leave the driver's seat to make an inspection of his bus, while halted in the midst of a busy intersection, when no circumstance is shown which would cause him to realize that one of his passengers had fallen from his seat or was in a precarious position.
In Wilcoxen v. Seattle, 32 Wn.2d 734, 203 P.2d 658 (1949), relied upon by appellants, the evidence was in conflict as to whether the operator of the bus involved had an opportunity to see the vehicle which turned in front of him in time to avoid making a sudden stop. The question was properly submitted to the jury. No such conflict of evidence exists in this case.
Appellants cite other cases that likewise fail to support their argument. In Mueller v. Washington Water Power Co., 56 Wn. 556, 106 Pac. 476 (1910), for example, a complaint was held sufficient where it was stated that the street car in question had stopped and that passengers were alighting; that plaintiff was in the act of stepping to the ground
In Blakney v. Seattle Electric Co., 28 Wn. 607, 68 Pac. 1037 (1902), we held that a plaintiff should have been nonsuited when her evidence showed that the injuries complained of occurred when she attempted to step from a street car in motion without having given the operator notice of her desire to alight.
There is no evidence in this case from which the jury had a right to find negligence, and there are no facts supported by evidence from which negligence could reasonably be inferred. The trial court correctly granted the motion for involuntary nonsuit and entered its judgment of dismissal.
The judgment is affirmed.
HAMLEY, C.J., MALLERY, HILL, and WEAVER, JJ., concur.