Connell v. Oregon Short Line R. Co.

• Decision Date: 25 August 1917
• Docket Number: 2056
• Citation: 51 Utah 26,168 P. 337
• Court: Utah Supreme Court
• Parties: CONNELL v. OREGON SHORT LINE R. CO. et al

168 P. 337

51 Utah 26

CONNELL v. OREGON SHORT LINE R. CO. et al

No. 2056

Supreme Court of Utah

August 25, 1917

Rehearing denied November 9, 1917.

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by Margaret B. Connell against the Oregon Short Line Railroad Company and the Pullman Company.

Judgment for defendants. Plaintiff appeals.

AFFIRMED.

Aaron Myers and Dey, Hoppaugh & Fabian for appellant.

George H. Smith and Baldwin Robertson for the railroad company.

W. H Leary and Jas. M. Lanigan for the Pullman company.

CORFMAN, J. FRICK, C. J., and McCARTY, THURMAN, and GIDEON, JJ., concur.

OPINION

CORFMAN, J.

Plaintiff commenced this action in the district court of Salt Lake County to recover damages for injuries sustained by her while being carried as a passenger in a car of the defendant Pullman Company in use by the defendant Oregon Short Line Railroad Company.

Briefly stated, the complaint alleges: That on the 19th day of December, 1914, plaintiff purchased a ticket of the defendant railroad company entitling her to transportation from Boise, Idaho, to Salt Lake City, over its line of railroad, and at the same time purchased a ticket of the defendant Pullman Company entitling her to transportation in the sleeping car "Reynosa" owned and operated by said Pullman Company over the railroad company's line between the points above mentioned; that while plaintiff was en route the train stopped shortly before noon on the 20th day of December, 1914, at the city of Pocatello, and plaintiff alighted from said train for the purpose of posting a letter, and upon returning to the train and entering the sleeping car, her foot slipped upon the sill or threshold of the door entering the car which was in a dangerous and unsafe condition owning to the negligence and carelessness of the defendants in not covering it with a mat or other covering for the protection of persons passing over it, and was, by reason of the joint and concurrent negligence of the defendants, coated and covered with ice; that by reason of said condition plaintiff slipped and fell to the floor of the car, breaking the bones of her left leg, in consequence of which she suffered and sustained damages in the sum of $ 15,000, for which she prayed judgment.

The defendants separately answered admitting their engagement with the plaintiff to carry her as a passenger for hire as alleged in the complaint; that at the time and place mentioned plaintiff met with an accident after alighting from the train and returning to the car in question by falling to the floor of the car and breaking her leg, and that she sustained injury thereby; denied all negligence on their part, and also other allegations of the complaint not admitted by their answer, and affirmatively alleged contributory negligence on the part of the plaintiff.

At the trial plaintiff, in her own behalf, testified concerning the circumstances and conditions attending the accident as follows:

"As we came through Idaho that day the weather seemed stormy, and I judge that the temperature outside was near zero. * * * When I went out to breakfast in the morning I noticed, in passing from my car to the diner, some snow on the vestibule of my car which had drifted evidently through a leaky side curtain, a curtain between the two cars. * * * The snow was blowing strong. * * * When we reached Pocatello I went out to mail letters. * * * The car was near the mail box. After mailing the letters I returned to the car. It was quite cold outdoors, eighteen or nineteen degrees above zero, I should say, but not storming hard, snowing just a little. I went back to the same door of the car out of which I came. * * * When I got to the platform I went to the door and put my hand on the door jamb and heard some one coming out of the hallway, or vestibule, and stepped back, and they came out and went down from the car to the platform of the depot. Then I stepped forward, first with the right foot and then with the left, and my left foot slipped and seemed to catch or stop on the linoleum, and I pitched forward and twisted clear around, until the end of my left foot was twisted clear around to the front. I stepped with my left foot upon the brass doorsill of the car, and as I placed the left foot upon the sill it slipped and I fell forward. I had all of my weight on the left foot. In coming onto the car platform I had noticed snow on the platform, practically the same as it was when I went to breakfast in the morning. There was snow on the car platform below and around the doorsill, but the center of the platform was clear. I didn't step in that snow, but stepped over it. I fell forward into the car, slightly to the right, grabbing at the doorknob. I twisted about as I fell and was almost in a sitting position when I got myself around. My feet were a little across the door of the car, my right foot further out than my left. My left foot had turned around until the heel was on the top. I got hold of it and wrenched it several times to get it around, and after doing that I looked to see what had made me fall, and put my had out to the brass doorsill. I was sitting on the floor inside of the car, and in putting out my hand rubbed my fingers over the doorsill and found flakes of snow on it. The ice on the doorsill proper, on the top part of it at that time was not ice that you could see. You had to feel it in order to find it. But outside of the door toward the platform there was a little more; you could see the ice with the naked eye. The metal sheet I spoke of was quite sloping and the ice on it was quite visible. The scale of ice on top of the doorsill was especially toward the outside. I don't know what you call it, moisture. The outer edge of the sill toward the outside of the car was where the ice was. I couldn't see it by looking at it even when I was sitting. I mean in looking down on the doorsill I couldn't see it. From my examination of the ice there on the doorsill by standing up and looking down as I went into the car I could not have seen it. I didn't see it after I fell, even close. I had to examine to find out what the trouble was."

On cross-examination plaintiff testified:

"I first saw the ice after I fell, but did not look before I fell to see whether there was ice there. I think I would have to have a microscope to have found it. I could not see it standing up. As I went into the door I didn't see any ice on top of the doorsill. As I made the step I saw a little bit of ice on the corrugated part. I had seen the snow on the platform when I went in and back from breakfast, and stepped over it when I went out to mail my letter. I saw nothing there that would apprise me of danger and make me feel that the doorsill was slippery. I was wearing rubber heeled shoes but it was the leather part that slipped, not the heel. I have ordinarily good eyesight and am rather cautious by nature. I looked at the sill a little bit more than ordinary when coming inside, and I discovered or thought that it was absolutely clear. I didn't discover it until I had got the ice off. Any one seeing the ice there must have got down to it and dug it up. I think that I would sense the danger quicker than a scatter-brained girl of sixteen, and might average pretty well in having as good judgment as a reasonable person such as the law contemplates. I used all reasonable faculties I had to avoid danger. It would be impossible for a reasonable person to suspect there was ice on the doorsill; there was not a particle--it was as clear as if there was ice--the brass right there, it looked as though it was a portion of the brass. I was very much surprised when I fell, and I leaned over and rubbed my fingers over the sill and found ice on my fingers. I rubbed there two or three times to feel--sort of feel--the ice. I am not positive that I got it on my fingers the first time, but I know there was ice there when I felt of it."

J. G. Anderson, a witness in behalf of the plaintiff, testified:

"Immediately after the accident I examined the threshold to determine its condition. I took my knife and my knife handle and scraped the top part of the doorsill to ascertain if there was any ice, and the cause of it being slippery. The door was shut when I examined the sill, there being about an inch and three-eighths of it extending from the edge of the closed door to the outer vestibule on which I found ice. The thin ice scale extended the full length of the doorsill on the outer side. I couldn't observe the ice on the top of the sill in a standing position. If I could, I would not have had to get down to examine it. I used the end of my closed knife with which to scrape and by doing so noticed some thin scale of ice. The ice was transparent, and you couldn't notice it in a standing position. It looked to be a piece of brass. That was the appearance of the sill. I made the examination of the sill before entering the car. This was the first time I saw any ice on the doorsill, although I might have been over it more than once. There was no ice inside the door to my knowledge."

J. D. Hayes, a pullman conductor, gave testimony as follows:

"I noticed some snow on the platform of the car Reynosa, and I called the porter's attention to it, telling him that he had better sweep it off, which was done. * * * About an hour later there was a little snow which had accumulated there, and the porter was busy, and I took the broom and swept it up myself. * * * When we got into Pocatello there was a slight amount of snow in the vestibule. * * * There was nothing on the doorsills that I could see at Pocatello."

Frank S. Pounders, also a Pullman conductor, testified:

"I went to take charge of the car Reynosa at Pocatello on December...