To impose liability on the defendant traction company, a common carrier, on the facts of this case, is without precedent in this Commonwealth and has no sound basis in law. *Page 266
It is conceded that a common carrier, in transporting school children of tender age, is required to use every reasonable caution and care; but to hold such a carrier guilty of lack of reasonable caution and care when its school bus operator discharges children (accompanied by a member of the school boy safety patrol), at a proper and safe place along a well travelled paved state highway, merely because the operator saw, or ought to have seen, a motor vehicle approaching on the highway, in the opposite direction and should not therefore have opened the bus door, imposes a liability on a common carrier which is unwarranted. If such a rule becomes fixed in our law, the cost to school districts for transporting school children will be greatly increased, which will ultimately fall upon the taxpayers of the Commonwealth.
The majority concede that there is no rule of law which requires that a school bus shall never have its doors open if a car is approaching, for the reason that in heavy traffic such a rule might make it impossible to permit children to alight for a long period of time. The question therefore narrows to the inquiry in this particular case whether the bus driver was negligent in opening the bus door when an automobile was approaching in the opposite direction. The question was left to the jury, as a question of fact, whereas in my view it was matter of law. The proven facts disclose that no recovery should be allowed against the traction company.
The factual situation narrated in the majority opinion is accepted as a fair and accurate statement, except those relating to the school boy patrol.
The well established rule requiring carriers to discharge their passengers in reasonably safe places extends to carriers by motor bus: O'Malley v. Laurel Line Bus Co., 311 Pa. 251,166 A. 868. If a railroad train stops at a railroad station with the platform in safe condition, the railroad company discharges its duty. The fact that the train crew are aware that discharged passengers, *Page 267 especially young passenger children, will be required to cross the tracks in order to arrive at their ultimate destination, imposes no additional duty of care by the railroad employees. Likewise, if a transit company discharges its passengers at a reasonably safe place (for example in a defined safety zone) the fact that the employees know that children passengers will be required to cross the street imposes no additional duty of care on the transit employees. Similarly, if a regular passenger motor bus stopped at a regularly designated and reasonably safe place to discharge passengers, the responsibility of the employees of the motor bus company concerning the safety of its discharged passengers would be similar to that relating to a railroad train or trolley car. There is nothing in this record which discloses that the contract of the traction company in the present case was that of portal to portal, which would require transportation of children from the school to their respective door steps. I therefore observe no difference in the measure of liability in any of the foregoing situations.
In some jurisdictions, in cases cited by the majority, it is not regarded as a reasonably safe place to discharge passengers of tender age at a point where the' operator of a school bus knows, or should have known, of the approach of another vehicle either from the front or rear. No such case has been decided in this jurisdiction, although our decision in Stuckwish et al. v.Hagan Corp. et al., 316 Pa. 513, 175 A. 381, would seem to infer this to be the rule in this Commonwealth.
Assuming, but not conceding, that such a principle ought to be engrafted upon our law (except perhaps in circumstances of unusual or obvious danger) what my learned brothers in majority ignore or minimize is the legal effect of the acts and of the status of the school boy patrolman. This, in my opinion, iswhat distinguishes the present case from all of the citedauthorities. In not *Page 268 one cited case does it appear that children passengers had the benefit of a caretaker, custodian or of any person charged with the duty of policing their movements across the highway after their discharge from the bus in an otherwise safe place. If each child being transported in the school bus had been accompanied by a parent, a teacher or a city or state policeman, and at each stop in a reasonably safe place any of such persons undertook to supervise the safe passage of the children across the highway, it certainly could not be regarded as the duty of the bus driver also to participate in the safe passage of the children across the highway. While in this case there were none of the above described individuals in charge of the children, there was present a member of the school patrol,named by the school authorities, equipped with a long pole witha red flag attached containing the word "caution" in largewhite letters, whose designated duty was to police the childrenacross the highways. True he was but ten years of age, but the evidence discloses that he performed his duties as intelligently and efficiently as any adult person could have done.
Counsel for the appellant points out that the "school-boy-patrol" is organized and sponsored by the American Automobile Association. The member of the patrol in the present case had been selected and instructed by the principal of the school (in no way or under the control or direction of appellant) to warn passenger children, required to cross the highway, of approaching traffic, so that they would not walk or dart into the path of an approaching vehicle. The presence of this boy, so equipped, was also to warn operators of approaching vehicles so that they should place their cars under control and proceed in a proper manner. The patrol had been instructed by the school principal to alight from the bus before the other children; to walk in front of the bus to the center of the highway, then look in both *Page 269 directions for approaching vehicles; to hold his flag across the traffic lane, which would be used by approaching vehicles, as a signal for the children to cross the highway, in the event that approaching traffic was not visible; or to hold the pole with the flag affixed in front of the children as a warning to them of approaching traffic, if such a vehicle was visible. The children themselves had been instructed by their teachers to obey the warnings and instructions given them by the school boy patrolman when alighting from the bus and crossing the highway. Judicial notice should be taken of the manner of operaton of school boy patrols which exist in almost every school, to police school crossings in cities and points where children would cross highways in rural areas, in travelling to and from school in bus or other public conveyance. The presence of members of the school boy patrol, with their white "Sam Brown Belts," badges and bamboo poles with red flags affixed, is a familiar sight in almost every street and highway in the Commonwealth. All motorists are fully aware of the significance and status of these boys and their equipment. That evennational approbation is accorded this public service is evidenced by the recent newspaper report of the complimentary address to the National Organization of School-Boy Patrols in Washington, D.C., by the United States Senator from this very district.
The record discloses that the driver of the bus, the school boy patrolman and all the children recognized and complied with the regulations. When the bus door was opened, the school boy patrolman preceded all of the children with his pole and flag. The children followed the patrolman coming out of the bus and going across the front of the bus. When the patrolman looked up and down the road and observed no vehicle approaching, he placed his pole across the road indicating that it was safe to cross. One boy, Gene Vogel, brother of the minor plaintiff, safely crossed the road and reached his home. *Page 270 As Gene crossed, the patrolman observed the approaching automobile. The patrolman thereupon immediately placed his pole parallel with the road, indicating that all of the other children should stop until the vehicle had passed. The driver of the approaching vehicle, Walter Stupi, negligently approached, lost control of his car, and severely injured the minor plaintiff. At that time the minor plaintiff was directly in front of the school bus, or very slightly to the left thereof.
It is difficult for me to see, in these circumstances, how any liability should attach to the traction company. With full knowledge and experience concerning school boy patrol practices, as above narrated, the bus driver observed that the patrolman had preceded the children, was properly equipped, and that the children were acting in the manner in which they were instructed. He could therefore properly assume that the patrolman would perform, as he did, all of his duties with safety and efficiency. I can discern no difference than if a parent, teacher or police officer had acted in the same manner in which the patrol boy acted.
The majority attaches liability because they hold it to be negligent for the bus driver to open the door when hesees or should have seen that a car was approaching. Realistically, this would, in effect, require a bus driver toconduct the children across the road. The ten children, being discharged, were not all of the children in the bus. The bus carried thirty children. If the bus driver is required to furnish such custodial care he will necessarily be required to leave the bus, after applying the brakes, with the motor running or shut off. With known mischievous propensities of children, his absence from the bus could seriously jeopardize the lives and safety of children left in the bus.
I would reverse the judgment of the court below and enter judgment for the defendant traction company non obstanteveredicto. *Page 271