Greyhound Corporation v. Blakley

• Decision Date: 08 December 1958
• Docket Number: No. 15949.,15949.
• Parties: GREYHOUND CORPORATION, Appellant, v. Juanita Jean BLAKLEY, a Minor, by Her Guardian Ad Litem, Sidney W. Blakley, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

262 F.2d 401 (1958)

GREYHOUND CORPORATION, Appellant, v. Juanita Jean BLAKLEY, a Minor, by Her Guardian Ad Litem, Sidney W. Blakley, Appellee.

No. 15949.

United States Court of Appeals Ninth Circuit.

December 8, 1958.

COPYRIGHT MATERIAL OMITTED

Kenneth C. Hawkins, Richard R. Greiner, Yakima, Wash., for appellant.

Tonkoff, Holst & Hopp, William B. Holst, Blaine, Hopp, Jr., Yakima, Wash., Day & Westland, John A. Westland, Kennewick, Wash., for appellee.

Before FEE, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

This is an action based on diversity of citizenship, 28 U.S.C. § 1332. The plaintiff is a citizen and resident of the State of Washington. The defendant is a corporation organized and existing under and by virtue of the laws of the State of Delaware. The matter in controversy exceeds, exclusive of interest and costs, the sum of $3,000.00.

The defendant appeals from a judgment based upon a jury's verdict which awarded plaintiff the sum of $78,097.50 for injuries sustained by the plaintiff while riding as a passenger in the defendant's bus. Defendant also appeals from an order of the trial court denying defendant's motion for a new trial or, in the alternative, for a judgment in favor of defendant notwithstanding the verdict.

The specifications of error of the trial court relied upon by the defendant are as follows:

1. Failure to grant defendant's motion for dismissal at the close of the plaintiff's case based upon the insufficiency of the evidence;

2. Failure to grant defendant's motion for a directed verdict at the close of the taking of all testimony;

3. Failure to grant defendant's motion for a judgment in its favor notwithstanding the verdict;

4. The giving of an instruction to the jury on the doctrine of res ipsa loquitur;

5. The withdrawal from the jury of the issues of contributory negligence, assumption of risk, and mitigation of damages; and the refusal to instruct the jury on such issues in the form requested in defendant's proposed instructions;

6. Submitting to the jury the question of the bus driver's negligence, on the ground such issue was not contained in the pretrial order, and on the further ground of insufficiency of the evidence;

7. Failure to grant a new trial on the ground that the award of damages by the jury was excessive and given under the influence of passion and prejudice.

In order to properly consider the defendant's specifications of error, it is necessary to briefly summarize the evidence which was before the trial court and the jury for consideration. Preliminarily, it should be stated that the taking of testimony consumed approximately two weeks. The testimony of 27 witnesses was received on behalf of the plaintiff, and the testimony of 29 witnesses was received on behalf of the defendant. In many areas the testimony was sharply conflicting and susceptible of varying and different inferences.

On Sunday evening, November 20, 1955, plaintiff, then nineteen years of age and then a freshman student of Washington State College, and two young girl friends who also were students at Washington State College located at Pullman, Washington, boarded defendant's bus at Spokane, Washington, for the return trip to Pullman, a distance of some 75 miles. The boarded bus shortly before its departure to Pullman had arrived from Lewiston, Idaho. The trip from Lewiston was uneventful, with no complaints from the passengers to the bus driver. Plaintiff and her two girl friends seated themselves in three seats in the rear of the bus, directly over the Diesel engine, which were the only seats available. Upon its departure from Spokane the bus was filled to capacity, carrying the bus driver and 37 passengers. Shortly after departure the three girls detected the odor of fumes. When the bus was in the vicinity of Spangle, Washington, but before it reached Rosalia, Washington, the fumes became more noticeable, and the plaintiff's two girl friends tried to open the windows but were unable to do so. Thereupon one of the girls notified the driver of the fumes and that she was feeling ill. The driver opened the window by his side, and she sat in the aisle until the bus reached Rosalia. Plaintiff and the other girl friend both felt sick and nauseated, and when the bus stopped for a passenger at Rosalia the two got out of the bus for fresh air. They returned to the bus and took their seats at the rear. Shortly after the bus left Rosalia they again felt sick, went forward and told the driver, who stopped the bus at Cashup, Washington.

The driver stated that this was the first time he had received any complaints or was aware of any fumes in the bus, although there is testimony in the record that the bus driver was so notified by the girl who first went forward and who sat in the aisle.

When the bus stopped at Cashup it had been on the road approximately fifty-five minutes from Spokane. Other passengers testified that they had noted fumes in the bus in the vicinity of Rosalia, and some had experienced sickness, including nausea and headaches, and had opened windows or put scarfs or handkerchiefs around their faces to protect themselves. Other passengers testified that they had noticed no fumes or had had no ill effects during or after the trip from Spokane.

At Cashup the driver helped the plaintiff and her girl friends off the bus, went to the rear of the bus, noticed fumes, and opened every window that could be opened. Meanwhile plaintiff had fainted while standing beside the bus, and had to be assisted back on the bus, where the bus driver made room for her at the front. Shortly thereafter plaintiff began gasping and throwing herself about in the seat and became irrational and semiconscious. Her condition was described as hysterical. Plaintiff remained in this condition until she was admitted to a hospital at Colfax, Washington, which was the next bus stop, where the driver arranged for the plaintiff to be hospitalized. The bus continued on to Pullman without the plaintiff, on which trip the windows of the bus were left open in spite of the cold weather. The radiator was covered with a winter front, and the engine was running hot. On arrival at Pullman the passengers on the bus who were traveling beyond that point were transferred to another bus, and the first bus was returned to Spokane without passengers and also driven by a new driver. Both these drivers reported, in writing, to the defendant's maintenance department that the engine was running hot and that the fumes were bad in the passenger compartment. Records indicate that the next day a new set of exhaust gaskets were installed in the engine of the bus, and work was done on the tube pipe.

At the hospital in Colfax Dr. Freeman diagnosed plaintiff's condition as hysteria and put her to bed. The diagnosis was based upon a fifteen-minute examination and was without aid of any information from the plaintiff, as she was unable to talk at that period. Dr. Freeman was in general practice, but apparently had had experience in carbon monoxide poisoning cases. The following morning the doctor talked with plaintiff, found her normal, and discharged her. The plaintiff then completed her trip to Pullman.

Upon her return to Pullman, plaintiff stayed in bed for one day, but thereafter continued in her regular college classes and activities. Her sorority sisters with whom she lived noticed that she seemed depressed, slept more than before, was afflicted with headaches, and appeared to have less energy. Her grades, however, improved, and she continued studying modern dance, actively participated in sorority affairs, and continued to have many dates.

Plaintiff called her parents by phone on the day of her return to Pullman, complained of a headache and said she was not feeling well. During the Thanksgiving vacation plaintiff appeared tired, irritable and still complained of headaches and nausea. During the Christmas vacation plaintiff's complaints continued, and on December 28, 1955, upon the request of her father's attorney she was examined by a general practitioner at her parents' home in Kennewick, Washington. This doctor found plaintiff normal except for weak reflexes in the knees, a condition which her college record revealed she had before the bus trip. The doctor advised plaintiff's mother that she should see a specialist about her daughter's condition if she were still concerned. The plaintiff continued to complain, and still seemed to be nervous and emotional, whereupon her parents requested their attorney to arrange for a specialist to examine her. The plaintiff was examined on May 7, 1956 by a specialist in the field of psychiatry and neurology, who maintains his practice in Spokane. This specialist performed a psychiatric, neurological and physical examination. He called another specialist in for consultation, who gave plaintiff an electroencephalogram for the purpose of discovering the presence or absence of brain damage. After further tests and hospitalization of plaintiff, the first specialist diagnosed plaintiff's ailment as organic encepthalopathy as a result of toxin, specifically carbon monoxide, which was manifesting itself in convulsive phenomena. This diagnosis was subsequently confirmed by another specialist in the same field. Defendant's doctor stated that his examination revealed similar evidence, although he was unable to state what caused it, but that such evidence would not necessarily mean organic brain damage.

The plaintiff completed her freshman year at Washington State College in the spring of 1956, but did not return to college the following fall. Plaintiff was not informed of the diagnosis of the specialist, and in June of 1956 obtained work as a stenographer-typist at Richland, Washington, which employment was terminated on September 27, 1957. While thus employed the fellow employees of plaintiff noticed that she suffered from a certain amount of dizziness, headaches, occasional fainting,...