Murray v. Rio Grande Motorway, 3702.

• Decision Date: 19 November 1948
• Docket Number: No. 3702.,3702.
• Citation: 171 F.2d 82
• Parties: MURRAY v. RIO GRANDE MOTORWAY, Inc.
• Court: U.S. Court of Appeals — Tenth Circuit

171 F.2d 82 (1948)

MURRAY v. RIO GRANDE MOTORWAY, Inc.

No. 3702.

United States Court of Appeals Tenth Circuit.

November 19, 1948.

Delbert M. Draper, of Salt Lake City, Utah (Edgar C. Jensen, of Salt Lake City, Utah, on the brief), for appellant.

A. H. Nebeker, of Salt Lake City, Utah (S. J. Quinney and Paul H. Ray, both of Salt Lake City, Utah, on the brief), for appellee.

Before, BRATTON, HUXMAN and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

Appellant brought this action against appellee, Rio Grande Motorway, seeking damages for personal injuries, alleging that one of the appellee's buses, on which he was a standing passenger, "suddenly and violently lurched to one side" and hurled him against a seat with such "force and violence" that he was ruptured in his left groin.

At the conclusion of all the evidence, the trial court sustained a motion for a directed verdict on the ground that the movement complained of was no more than the normal jostling or movement of the bus as it traveled along the highway. The appellant appeals from a judgment for the appellee bus company on the directed verdict. Jurisdiction is based upon diversity of citizenship and requisite amount in controversy, and the only question presented here is whether the evidence was sufficient to take the case to the jury on the issue of negligence.

Although the carrier owed the standing passenger the highest degree of care commensurate with the peculiar circumstances involved, the passenger assumed the usual and ordinary jerks and lurches incident to the movement of the bus over the public highways. Wichita Transportation Co. v. Braly, 10 Cir., 150 F.2d 315, 317; United States v. De Back, 9 Cir., 118 F.2d 208; McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P.2d 787; Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 142 P.2d 929; Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311; McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 59 P.2d 959; Morrisey v. Union Pacific Railroad Co., 68 Utah 323, 249 P. 1064.

To parapharse the language of the Utah Supreme Court in the Morrisey case, supra, it is common knowledge and experience that passengers on trains and buses may be shaken and jostled by the ordinary lurches and jerks which are unavoidable in the operation of trains and buses over grades and around curves. A permissible inference of actionable negligence arises only when the lurches or jerks are unusual and extraordinary — such as would not have happened in the ordinary course of the operation of the bus upon the highway. In determining whether the movement of the bus was so unusual as to justify the inference of negligence, the nature of the accident and the effect of the bus movement upon the passenger may be taken into consideration. McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 59 P.2d 959, 961; Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311, 316.

In support of his allegations appellant testified that at the time of the accident he was enroute to Salt Lake City as a passenger on appellee's bus. Not being able to obtain a seat on the bus he was standing in the aisle holding with his left hand onto a 5/8ths inch rope which ran through loops around the baggage shelf above the seats. "While so standing there was a violent motion of the bus. It changed direction or jumped. There was an unusual motion and I was propelled against the seat. I struck Miss Snow (a seated passenger) on the shoulder and feel across her lap," and "as I fell my left groin struck the corner of the seat." After regaining his feet he stated to...