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Polhemus v. Water Island Inc.

decided.: March 7, 1958.

JOHN E. POLHEMUS
v.
WATER ISLAND, INC., DEFENDANT-APPELLANT.



Author: Magruder

Before MARIS, MAGRUDER and STALEY, Circuit Judges.

MAGRUDER, Circuit Judge.

This appeal is from a final judgment for the plaintiff, pursuant to a jury verdict, in a personal injury case involving a motor vehicle. The defendant, Water Island, Inc., is the lessee of Water Island, situated in the harbor of Charlotte Amalie and a part of the legislative district of St. Thomas (68 Stat. 498, 48 U.S.C.A. § 1571). Water Island, Inc., operates an inn on Water Island. As part of the service offered to its guests, it maintains a station wagon and a jeep by means of which it furnishes transportation to its guests from the inn down a private road on the island to a dock about three quarters of a mile distant.From the dock a motorboat transports the guests to the mainland of St. Thomas.

Plaintiff and his wife arrived at Water Island as guests of the defendant on February 18, 1955. The next morning plaintiff and his wife, and a number of other guests, desired to be transported to the dock.The jeep had already left for the dock with a group of passengers. The remaining guests, including plaintiff and his wife, elected to be driven down to the dock in the station wagon. Plaintiff's wife, and other passengers, filled up the seats in the station wagon, so that the plaintiff decided to hang on the outside of the station wagon, standing on the right-hand running board. Since cars drive on the left side in Virgin Islands, the position assumed by the plaintiff necessarily subjected him to some risk of being brushed off and injured as the station wagon passed another vehicle. Though there was a conflict of testimony on the point, Hugh Smith, the driver of the station wagon and an employee of defendant, insisted that he made known to the plaintiff that he did not like to have the plaintiff riding on the running board, and told him that if he would wait the station wagon would come back for him, but plaintiff replied that he was all right and would stay where he was. At any rate, Smith started the station wagon down the hill, at an excessive rate of speed under the circumstances, according to testimony of plaintiff and his wife, though this was denied by defendant's witnesses. When the station wagon neared the dock it met the jeep coming back up the hill. Though the road was a narrow one, it seemed to the driver of the station wagon that by turning out to the left there would be sufficient clearance for the two vehicles to pass. After going by the front of the jeep, Smith cut the station wagon back into the road, and the two vehicles passed each other without touching, according to defendant's witnesses, but this was denied in testimony offered on behalf of the plaintiff. However, the plaintiff, anticipating that he might be struck by the lug on the tire carrier on the right-hand side of the jeep, tried without success to crawl into the station wagon, but his exposed left leg was struck by the jeep and he was knocked off and injured.

At the conclusion of the testimony, the trial judge ruled as a matter of law that defendant was liable for plaintiff's injuries, and accordingly he left to the jury only the question as to the amount of damages. With this limitation the jury reported a verdict assessing the plaintiff's damages in the sum of $7,800. Thereupon the court entered the judgment now appealed from ordering defendant to pay the plaintiff the sum of $7,800, together with costs and an attorney's fee.

By appropriate motions under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C., the defendant had moved for a directed verdict at the close of all the evidence, and after verdict for plaintiff had moved that the court enter judgment for the defendant, notwithstanding the verdict, joined with a motion for a new trial in the alternative. These various motions were denied by the trial judge, who proceeded to enter the judgment now under review.

Defendant's claim to be entitled to a directed verdict was apparently based upon the theory that the plaintiff himself was guilty of negligence per se in violating the terms of § 9(c) of a criminal ordinance originally passed by the Municipal Council for the Municipality of St. Thomas and St. John on February 14, 1930, reading in part as follows:

"Riding on the running board or other exterior fitting of an automobile, except by a mechanic engaged in testing the automobile, or by a policeman, is prohibited."

As to this ordinance, the trial judge ruled "that the said section applies to public streets and highways in Saint Thomas And does not apply to private driveways upon private property, or private roadways upon private property as is the situation in the instant case before us. The Court takes judicial notice that Water Island is private property, consisting only of private roads, and that the roadway upon which this accident happened was not a public street or roadway in the Municipality of Saint Thomas, but was such private roadway in Water Island."

We think the trial judge was right in this ruling as to the inapplicability of the ordinance. It is true that the provision of § 9(c) above quoted is expressed in unqualified language, and does not profess to be inapplicable to private premises, whereas other provisions of the ordinance are expressly made applicable only to public highways. See, for instance, §§ 7(c) and 8(b).Of course, this may have been a mere oversight. In § 3(a) of the ordinance it was provided, again without specific qualification, that "no motor vehicle shall be operated until it has been registered in the office of the Director, a registration license issued therefor, and the vehicle equipped as provided herein." In § 331 of title 20 of the recently enacted Virgin Islands Code, which was based upon § 3(a) of the old municipal ordinance, it is now provided that "no motor vehicle shall be operated upon the public highways of the Virgin Islands unless it has been registered by the Commissioner of Public Safety and a registration license issued therefor, and unless it is equipped with license plates as required by this chapter." The revision note attached to § 331 states that the change made by the specific reference to "public highways" was only "for the purposes of clarification."

We may point out that, even if § 9(c) of the ordinance were held to be applicable to the private road on Water Island, still the defendant would not have been entitled to a directed verdict. The breach of the criminal ordinance, by standing on the running board, would only establish the plaintiff's fault or negligence as a matter of law. That would still leave open the question of proximate cause, which really was not in issue here, since the plaintiff was injured by the operation of the particular extra risk which presumably made it negligent for him to ride on the right-hand side of the running board. But treating the plaintiff's conduct as thus amounting to contributory negligence, there would still remain to be determined the question whether the defendant, knowing of the exposed position of danger in which the plaintiff had negligently placed himself, had a last clear chance, by the exercise of care, to avert injury to the plaintiff. See Am.L.Inst., Restatement of Torts §§ 479 and 480; § 4 of title 1 of the Virgin Islands Code. As indicated below, this raised an issue which should have been submitted to the jury.

Though § 9(c) of the ordinance was inapplicable, as ruled by the trial judge, the jury would have to determine whether the plaintiff was guilty of common law contributory negligence in thus riding on the running board.*fn1

But if it be found as a fact that the plaintiff was guilty of common law contributory negligence, there would, as above stated, still remain the question of the last clear chance. Defendant had a duty to act with care in operating the station wagon in the known circumstance that the plaintiff had negligently put himself in a position of danger.

What did the evidence show as to whether the defendant was thus negligent? Though the station wagon and the jeep were both being driven by servants of the defendant in the scope of their employment, the plaintiff seems to have concentrated upon establishing that the driver of the station wagon was negligent rather than the driver of the jeep. In his complaint the plaintiff alleged that the operator of the station wagon was negligent "in that he operated same at a high and excessive rate of speed, failed to look in the direction in which he was going, failed to have control thereof, permitted the plaintiff and other passengers to ride on the running board of said station wagon, ...


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