Ketchum v. Denver & Rio Grande Western R. Co.
| Decision Date | 10 May 1949 |
| Docket Number | No. 3843.,3843. |
| Citation | 175 F.2d 69 |
| Parties | KETCHUM v. DENVER & RIO GRANDE WESTERN R. CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward F. Richards, Salt Lake City, Utah (Harley W. Gustin, Salt Lake City, Utah, on the brief), for appellant.
Grant H. Bagley, Salt Lake City, Utah (W. Q. Van Cott and Dennis McCarthy, Salt Lake City, Utah, on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
Marie M. Ketchum brought this action against Denver and Rio Grande Western Railroad Company1 to recover damages for personal injuries.
Ketchum is the wife of a retired employee of the Railroad Company. On February 11, 1947, she held a pass theretofore issued to her by the Railroad Company, authorizing her to travel on trains of the Railroad Company, other than certain designated trains, without charge. Ketchum signed the pass immediately below the following provision:
"This Pass accepted by me for use subject to conditions on back."
The reverse side of the pass contained the following condition:
"The user assumes all risk of injury to person and loss or damage to property, whether by negligence or otherwise, and absolves any carrier honoring this pass, as well as its agents or employees, from any liability therefor."
On February 11, 1947, Ketchum entered the Railroad Company's passenger station premises at Helper, Utah, to travel on a train of the Railroad Company from Helper, Utah, to Ogden, Utah. While proceeding along the walkway from the station to the train for the purpose of boarding it, she suffered an accident. A verdict was returned in favor of Ketchum. The trial court entered judgment notwithstanding the verdict on the ground that Ketchum was barred from recovering by virtue of the provisions of the pass. She has appealed.
The relation of carrier and passenger arises, and the duty of the carrier to the passenger attaches, when the latter enters the station premises for the purpose of boarding a train of the carrier. Such relationship precedes the actual boarding of the train and comes into being when a person, with the consent of the carrier, express or implied, enters the appropriate premises of the Railroad Company with the bona fide intent to avail himself of the transportation facilities which the carrier offers.2 It follows that the relationship of carrier and passenger existed at the time the accident occurred.
Section 1 of the Act of June 29, 1906, the Hepburn Act, as amended by the Acts of April 13, 1908, and June 18, 1910, 49 U.S.C.A. § 1(7), in part reads as follows:
"No common carrier subject to the provisions of this chapter, shall, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, * * *."
Utah Code, Ann.1943, § 76-3-6(3), enacted in 1917, in part provides:
"(3) No common carrier subject to the provisions of this title shall, directly or indirectly, issue, give or tender any free ticket, free pass or free or reduced-rate transportation for passengers between points within this state, except to its officers, agents, employees, attorneys, physicians and surgeons, and members of their families; * * *."
The language of the Utah statute is so strikingly similar to the Federal statute that there can be no doubt that Utah adopted it from the Federal statute. Prior to such adoption, the Supreme Court of the United States had held that a condition in a pass absolving the carrier from liability for its negligence was valid under § 1(7), supra.3 It reaffirmed its holding in Kansas City Southern R. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348, decided in 1923, and Francis v. Southern Pacific Co., 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798, decided in 1948.
A statute adopted from another state will be presumed to have been adopted with the construction placed upon it prior to its adoption by the courts of the state from which it was adopted.4
The pass was an interstate pass. Whether the validity of the condition in the pass is to be determined by Federal law, see New York Cent. R....
To continue reading
Request your trial
-
Schiller v. Pennsylvania Railroad Company
...this conclusion, I recognize that the principle enunciated in the dictum of the Tenth Circuit opinion in Ketchum v. Denver & Rio Grande Western R. Co., 1949, 175 F.2d 69, 7111 is broad enough to support a contrary result. However, that court had before it the case of a free pass user who wa......
- Johnson v. Morris, 3802
-
McKaig v. Kansas City Terminal Ry. Co.
...our ruling that she need not be on either train to be a 'user' as that term appears in both passes. In Ketchum v. Denver & Rio Grande Western R. Co., 10 Cir., 175 F.2d 69, 70, the free pass provided, 'The user assumes all risk of injury to person * * * .' Plaintiff entered the station premi......
-
Ludwig v. Massachusetts Mut. Life Ins. Co.
...Carriers § 556 at 1061 et seq. Among other cases cited in the cumulative pocket part to that volume is Ketchum v. Denver & Rio Grande Western R. Co., 175 F.2d 69 (10th Cir. 1949), which states the law pertaining to carriers, not as the law of a particular state, but as general "The relation......