Tacoma Ry. & Power Co. v. Cothary

• Decision Date: 05 September 1916
• Docket Number: 2736.
• Citation: 235 F. 872
• Parties: TACOMA RY. & POWER CO. v. COTHARY et ux.
• Court: U.S. Court of Appeals — Ninth Circuit

235 F. 872

TACOMA RY. & POWER CO. v. COTHARY et ux.

No. 2736.

United States Court of Appeals, Ninth Circuit.

September 5, 1916

The defendant in error, who was the plaintiff in the court below and will be here so designated, was struck and injured by an electric car running in Point Defiance Park near Tacoma. The railway company operated the car under an ordinance of the city of Tacoma which gave it license to construct and operate and maintain a line of double-track railway within the park and required that at the terminus or loop of the railway, and for a distance along the main line, to be agreed upon by the railway company and the park commissioners, the company should construct and maintain 'a wire fence six feet high, with suitable gates and turnstiles for the protection of the public in getting on or off the cars. ' The plaintiff when she was injured was, in company with two others, endeavoring to go through a turnstile in a fence made by the defendant, through which people were accustomed to go from the park to a bathhouse. The distance between the ends of the bars of the turnstile and the side of a passing car was two feet and five inches. There was a long platform six feet wide between the track and the fence in which the turnstile was located. The plaintiff had walked along the railroad track as was the usual custom in going to the bathhouse from the park. On reaching the upper end of the platform, she had turned to look to see if any car was in sight, and, seeing none, had proceeded to the turnstile with her companions. They found that the turnstile for some reason would not revolve. They stepped back and endeavored to make it turn in the opposite direction, and, at a moment when the plaintiff had her hand upon the crossbar pushing it, she was struck by a passing car. She testified that she did not hear the car approaching, that there was no whistle, and that she had not looked to see a coming car from the time when she reached the upper end of the platform. The complaint alleged negligence of the railway company, in that the car track was too close to the turnstile, that the car was running at an excessive rate of speed, that the motorman gave no signal or warning to the plaintiff, and that the motorman was negligent in not stopping the car sooner.

Frank D. Oakley and John A. Shackleford, both of Tacoma, Wash., for plaintiff in error.

Govnor Teats, Leo Teats, and Ralph Teats, all of Tacoma, Wash., for defendants in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The defendant's principal contention is that the court below erred in overruling its motion for an instructed verdict which was interposed on the ground that the complaint did not state grounds sufficient to constitute a cause of action that the car was not exceeding any speed limit, nor operated in a careless or negligent manner, and...