Fish v. Ball
| Decision Date | 05 February 1938 |
| Docket Number | No. 1572.,1572. |
| Parties | FISH v. BALL |
| Court | U.S. Court of Appeals — Tenth Circuit |
Willard Hanson, of Salt Lake City, Utah (Nephi Jensen, of Salt Lake City, Utah, on the brief), for appellant.
Frank A. Johnson, of Salt Lake City, Utah (Dey, Hoppaugh, Mark & Johnson, of Salt Lake City, Utah, on the brief), for appellee.
Before BRATTON and WILLIAMS, Circuit Judges, and SYMES, District Judge.
Joseph S. Fish, appellant (plaintiff below), sued to recover damages for personal injuries sustained on August 1, 1936, while a passenger for hire on a passenger car of the defendant. The latter operates a single track electric road carrying freight and passengers from Salt Lake City to Payson, Utah, and other points. Fish and a friend, a Mr. John, boarded the car by the rear door at Sixth South and First West streets in Salt Lake City for a trip to Provo and rode with five ladies and two other men on the inclosed rear platform. After the car had proceeded about three miles, it ran into the rear of another car of defendant stalled ahead on the single track, due to a dislodged trolley. The plaintiff was thrown to the floor and suffered injuries for which he brought this action.
The court directed a verdict for the defendant at the close of all the evidence, on which judgment was entered. Plaintiff appeals.
The receiver failed to offer any evidence tending to show that the collision occurred without negligence on the part of the company.
The action of the court was based upon section 77-0-18, Rev.Stats. of Utah, 1933, reading:
"In case a passenger on a train of a railroad company shall suffer personal injury while riding on the platform of any car or on any baggage, wood, gravel or freight car in violation of the company's printed regulations posted at that time in a conspicuous place inside its passenger cars then in such train, or in violation of verbal instructions given by any officer of such train or company, the railroad company shall not be liable for such injury provided at the time it had furnished and had available room inside of its passenger cars then in such train sufficient for the accommodation of the passengers."
On the inside of the door of the car was the following notice:
"Passengers are forbidden to ride on platform or to operate doors or traps."
There is testimony that the conductor came along shortly after plaintiff and his friend got on, took their tickets and told the young ladies there were seats in the smoking compartment at the head end of the car. John inquired if there were any seats in the front end and the conductor said "you may get a seat." He thereupon walked to the front end and sat in the motorman's room, preferring to ride there. He said the aisle was crowded and that he did not see any seats at all in the regular compartment, and people were standing up there. The seats were taken in the smoker and there was only one vacant seat in the baggage compartment, which he took. A woman passenger testified there was a vacant seat next to her. The conductor testified he told the plaintiff to go inside and get a seat, that there were 61 passengers in the car, which seats 64, provided some sit on a plank on each side of the baggage compartment — a separate inclosure from which passengers were forbidden unless the smoker and main compartment were full.
The car was entirely inclosed. A door led from the rear platform into the main seating compartment of the car, in the front of which was a smoking compartment and beyond that the motorman's room.
A witness, Jolley, testified he got on the car at Salt Lake ten minutes before it started and walked from the rear end clear through to the motorman's compartment before he found a seat; that later several other people came in there and fully occupied the side benches and he was positive there were no available seats at that time in the main portion of the car or in the smoker. His companion, Mr. Neville, testified to the same effect.
Plaintiff stated when he got on the car there was no chance of getting a seat as none were vacant; that there was a crowd on the platform and in the aisle. The car made no other stop after he got on and nobody got off.
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Caraglio v. Frontier Power Co., 4267.
...contributing cause of an injury. Restatement, Torts, § 463; 9 Words and Phrases, Perm.Ed., p. 379, Contributory Negligence; Fish v. Ball, 10 Cir., 93 F.2d 853; Silva v. Waldie, 42 N.M. 514, 82 P.2d 282, 285. In determining whether an injured person has been guilty of contributory negligence......
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Saindon v. Lucero
...contributing cause of an injury. Restatement, Torts, § 463; 9 Words and Phrases, Perm.Ed., p. 379, Contributory Negligence; Fish v. Ball, 10 Cir., 93 F.2d 853; Silva v. Waldie, 42 N.M. 514, 82 P.2d 282, 285. In determining whether an injured person has been guilty of contributory negligence......