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Case:
BGH VersR 1969, 518 VI. Civil Senate
Date:
18 February 1969
Judges:
Professor B.S. Markesinis
Copyright:
Von Mehren and gordley

A bus owned by the defendant pulled up to a bus-stop without coming close enough to the kerb to enable passengers to step directly from the kerb into the bus. Plaintiff, a sixty-year-old woman, stepped into the street to board the bus and slipped on a patch of ice. As the plaintiff was regaining her feet, the conductor of the bus gave the signal to start the vehicle, the driver set the bus in motion, and the bus struck the plaintiff. She sued the bus company under § 831 BGB for her injuries. The court held that ‘in view of the great danger of accidents [during departures at icy bus-stops], and especially of accidents caused by inopportunely placing the bus in motion, it is not enough that, as witness J testified, the driver received instructions during his training as to the need for appropriate conduct’. The defendant had to supervise the driver and conductor on a continuing basis.

The appellate court correctly reasoned that, from a practical and legal standpoint, the measures for training and supervision demonstrated by the first defendant are insufficient to guarantee sufficiently the proper conduct of bus personnel and, in particular, their conduct in stopping and supervising departures from the bus at icy bus-stops. In view of the great danger of accidents during these departures, and especially of accidents caused by inopportunely placing the bus in motion, it is not enough that, as witness J testified, the driver received instructions during his training as to the need for appropriate conduct. Unless the driver and the conductor were given continual oral reminders, it was at least required that a written notice be kept before them in an accessible place advising them of precisely these dangers and the means for avoiding them. The first defendant, who has the burden of exoneration, has presented no evidence on such measures, and has also failed to prove that the personnel were instructed concerning the special dangers of icy bus-stops.

The appellate court also justifiably criticized the proof offered on the grounds that the inspections, which were only described in the testimony of witness J, should have been directed to the proper starting of the vehicle and to the attention required at icy bus-stops. Finally, the appellate court correctly reproached the defendant for not having been able to present any evidence of both occasional unanticipated inspections and occasional covert inspections (the latter being normally impossible when personnel known to the driver are used). In view of the special responsibility of public commercial enterprises, such inspections by reliable employees cannot be neglected.

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