COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61241 SHIRLEY R. WADE : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION REGIONAL TRANSIT AUTHORITY : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 158298 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOSEPH C. DeROSA, ESQ. RUSSELL T. ADRINE, ESQ. WINCEK & MARTELLO, CO., L.P.A. Assistant General Manager/Legal 1500 Standard Building By: OSCAR TRIVERS, ESQ. Cleveland, Ohio 44113 615 Superior Avenue, N.W. Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant regularly took the 19X bus home from her work downtown. On November 7, 1986 appellant was riding home when the bus stopped to let off passengers at East 55th and Broadway. After the passengers had gotten off the bus via the back door, the driver closed that door, and another passenger entered the bus through the front door. He sat directly behind the driver. The bus driver, James Workman, turned around to ask the man for his fare. Workman then noticed a uniformed man standing just outside the front door of the bus, aiming a gun towards him. The man with the gun demanded that the man who had just boarded the bus, "Get off the bus." By this time the man had come to the front of the bus to stand right next to the driver. Workman testified that he was in a standing position behind the wheel of the bus, "pushing the guy away from" him. (Tr. p. 74). The uniformed man, identified by Workman as a Cleveland police officer, then came aboard the bus with his gun drawn. Workman testified that the man pursued by the police officer then "started moving towards the rear" of the bus where appellant and approximately thirty other passengers were seated. (Tr. p. 75). Once the police officer passed him, Workman got off the bus. At trial he explained this action by stating, "I could not get between the policeman and what he was doing." (tier. p. 77). Three other passengers testified as to the events of that evening, including the appellant. The first witness was Carol - 2 - Tolbert. Ms. Tolbert testified that "some guy got on the bus waving a gun, shouting `Get off the bus. Get off the bus.'" (tier. p. 30). She testified that the passengers panicked after seeing the man with a gun and she was pushed out of her seat and out of the bus. Deborah Turner was also a passenger that evening. She testified to hearing someone say "Get off the bus. Get off the bus." Then she noticed the driver getting off the bus and two men with guns out, shouting "Get off the bus." She ran to the back door from her seat at the very rear of the bus and forced it open far enough to get her body through. On cross-examination Ms. Turner said that the two men did not have on uniforms. On re-direct she testified that "As far as I can remember, there was only about two or three people standing behind me" at the time she ran to the back door. Turner was not pushed off the bus, but got off on her own. Appellant testified that she also heard a voice saying, "Get off the bus," and at that point she looked up and saw a man "waving a gun in the air." (tier. p. 93). She said she did not notice a uniform, but the man was wearing a blue shirt and pants. When appellant got off the bus a lot of people were trying to get through the back door of the bus and she was pushed to the sidewalk and trampled upon. Appellant sustained injuries to her arm, legs and back. Her back injury is permanent. - 3 - Appellant filed a complaint on October 17, 1988, alleging that the injuries she sustained were a result of the negligence of the bus driver. She alleged that the driver was negligent in his failure to provide a safe means of escape for his passengers. After appellant put on her case at the trial level, appellee, the Regional Transit Authority ("RTA"), made a motion for a directed verdict. This appeal arises from the decision of the trial court to grant the motion for a directed verdict. Appellant raises two assignments of error. I THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR A DIRECTED VERDICT AT THE CONCLUSION OF THE PLAINTIFF'S CASE Appellant argues that the motion was granted in error because she submitted evidence of substantial probative value which supported her claim that appellee breached the duty of care he owed to her. Appellant claims that it was the driver's duty to allow her the opportunity to exit the bus in a safe manner. She also asserts that the driver, knowing of the risk to his passengers, pushed the suspect being chased by the police back further in the bus, beginning the series of events which led to her injuries. Appellee simply denies any negligence on the part of its employee. This court finds that the directed verdict was properly granted by the trial court. Civ. R. 50(A)(4) sets forth the standard to be applied by the trial court in - 4 - determining whether or not to grant a motion for a directed verdict. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. After construing the evidence most strongly in favor of appellant, the trial court correctly found that reasonable minds could come to but one conclusion on the issue of appellee's negligence. That conclusion is adverse to appellant and the trial court properly sustained appellee's motion for a directed verdict. It is well recognized that: the duty of a common carrier of passengers is to exercise the highest degree of care for the safety of its passengers consistent with the practical operation of the system. Dietrich v. Community Traction Co. (1964), 1 Ohio St. 2d 38, 41. This duty of care extends only to circumstances within the control of the common carrier. Brinkmoeller v. Wilson (1975), 41 Ohio St. 2d 223. The duty is also not so high that it makes the common carrier an insurer of its passengers' safety. - 5 - This court addressed a similar issue in Cleveland Railway v. Featherstone (1930), 8 Ohio L.Abs. 498, 499: While it is true that the railway company owes a duty of the highest degree of care to its passengers, it cannot be regarded as an insurer of the safety of passengers. In judging whether or not the railway company exercised the highest degree of care toward this plaintiff, reference must be had to the surrounding circumstances. The facts in Cleveland Railway involved a passenger who was injured when the driver stopped suddenly to avoid hitting a pedestrian who darted out in front of the bus. The court took these circumstances into account to hold that the "driver has [the] right to assume that no person will negligently run out across the street in front of the bus." Cleveland Railway v. Featherstone, at 498, paragraph one of the syllabus. The driver did not breach the duty he owed to his passengers when he avoided a potential fatality. This court again dealt with a similar issue in Hamilton v. City of Cleveland (1952), 93 Ohio App. 93. The bus passenger in that case was injured when a gun being handled by a fellow passenger discharged. The court in Hamilton affirmed the jury verdict against the defendant bus company, finding that the driver was negligent in that case. The passenger with the gun had gotten on the bus and started a conversation with the driver. The passenger had once worked with the driver and was then - 6 - working as a city police officer. The passenger had been showing the driver his weapon for four or five minutes before the weapon discharged. This court held: The liability of a carrier for injuries to a passenger caused by the negligent, meddlesome or unlawful acts of a fellow passenger, arises not from the fact alone that the passenger has been injured, but from the failure of its agents or employees to afford such passenger proper protection where such agents or employees know, or ought to know, that danger from a fellow passenger exists or is reasonably to be apprehended and can, by the use of proper care, be prevented. In the absence of notice or knowledge that danger of injury to the passenger was created or existed or was reasonably to be apprehended in time to take some reasonable action or precaution looking to the prevention thereof, there is no liability, but in the presence of evidence of such notice or knowledge it becomes a question of fact for the jury whether a railway employee, a conductor or operator, exercised the degree of care required of him by law. Hamilton v. City of Cleveland, at paragraphs one and two of the syllabus. Applying the law set forth by these cases, RTA would not have breached the high standard of care it owes its passengers as a common carrier. Taking the surrounding circumstances into account, the driver had no reason to expect that an armed police officer, whether in or out of uniform, would board his bus with - 7 - weapon drawn, shouting "Get off the bus. Get off the bus." The driver also had no reason to anticipate that his passengers would panic and stampede out the back door, trampling each other in the process. In pushing the suspect away from him, the driver was acting reasonably in the course of self-preservation. He had no duty to his passengers to become a shield or a hostage for this man wanted by the police. The driver also owed no duty to his passengers to act as a hero and apprehend the suspect or shove him out the door, as the appellant suggests the driver should have done. Although the standard of care for common carriers is high, it does not require that the employees risk their lives or anticipate the highly unusual. Appellant's first assignment of error is overruled. The trial court properly granted the appellee's motion for a directed verdict. II THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A MISTRIAL Appellant asserts that the trial court improperly questioned her on the stand. Appellant claims that remarks made by the court were improper because they indicated to the jury that the court held an opinion as to what the evidence showed. Although this may be true, as a matter of law the appellant was not prejudiced by the court's remarks because the matter never went to the jury. The court granted appellee's motion for a directed - 8 - verdict before the jury ever had a chance to weigh the evidence or take into consideration the court's view of it. Appellant's second assignment of error is overruled. The trial court's judgment granting the motion for the directed verdict is affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, J., AND BLACKMON, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .