Fitzgerald v. Southern Pac. Co.

88 P. 669, 31 Utah 510, 1907 Utah LEXIS 74

Opinion

STRAUP, J.

This case is similar to the cases of McCollum v. Southern Pac. Co., supra, p. 494, 88 Pac. 663, and Mathis v. Southern Pac. Co., supra, p. 507, 88 Pac. 668. The plaintiff was a passenger of the defendant on the same train and in the same car as were the other plaintiffs, except that she boarded the train at Reno, Nevada, while the other plaintiffs, boarded the train at Oakland, California.

In this case no error is predicated on the introduction of parol testimony as to the contents of the ticket, nor upon the charge of the court. As to the condition of the coach to which the plaintiff was directed by the servants of the defendant, the complaint made -by her of its condition, her request, made of the conductor, that other and better conditions be furnished her, and his neglect to do- so, the evidence is the same. The only error complained of is based upon the fact that the plaintiff, as matter of law, should have left the train when she had discovered the condition of the coach and the refusal of the conductor to provide or furnish other conditions. This feature of tbe case is discussed in the McCol-lum Case, and there decided adversely to the contentions of the appellant. This case is therefore controlled by that case. The judgment of the court below is affirmed, with costs.

McCARTY, C. J., and PRICK, J., concur.