French v. Pacific Electric Railway Co.

SMITH, J. This is a. suit for damages alleged to have been suffered by the plaintiff from injuries caused by his being thrown to the ground while alighting from one of defendant’s cars. There was evidence on the part of the plaintiff tending to show that while alighting from the car, after it had stopped, the car was suddenly started forward, and that he was thereby thrown violently to the street. On behalf of defendant, there was evidence tending to prove that plaintiff alighted while the car was in motion. The court instructed, the jury (among other instructions) as follows: “You are instructed that the burden of proof is upon the plaintiff to show that the injury to a passenger was caused by the act of the carrier in operating the instrumentalities employed in its business. If this be shown by a fair preponderance of all the evidence, then there is a presumption of negligence which throws upon the carrier the burden of showing that the injury was sustained without any negligence upon his part.” And the following instruction, asked for by the defendant, was refused: “The court instructs the jury that the plaintiff in this action seeks to recover damages sustained by reason of in *404 juries to him, on account of the alleged negligence of the defendant, its agents and employees, and you are instructed that in a ease of this character the burden of proving negligence rests upon the plaintiff, and he must prove the negligence alleged in the complaint by a preponderance of evidence.” The case was tried by a jury, and verdict was for the plaintiff. The appeal is from the judgment entered on the verdict and from an order denying the defendant’s motion for a new trial. The sole errors complained of are the giving of the former and the refusal of the latter of the instructions quoted. As to the instruction given, it is urged by the appellant, and is not denied, “that there was but one issue in the case, viz.: Was the car started while the plaintiff was alighting therefrom, as he claimed, or did he voluntarily alight therefrom while it was in motion, as the defendant claimed ? ’ ’ The objection urged by the appellant to the instruction is in effect that it took this issue from the jury. But this is obviously not the ease. If the plaintiff was injured by alighting from the car, while it was in motion, or if there was any contributory negligence of any kind proven, then the injury was not caused “by the act of the carrier in operating the instrumentalities employed in its business”; and the instruction could have no application. Accordingly, the jury were explicitly instructed, in effect, that a passenger who voluntarily alights from a ear when in motion assumes the risks thereof, and cannot recover for any injuries sustained thereby, and that if the jury believe from the evidence that the plaintiff alighted from the ear while in motion, and was thereby injured, then he was guilty of such negligence as to preclude a recovery; and there were other explicit instructions to the same effect. The jury, therefore, could not have been misled as to the issues submitted to them. Nor, as the law is established in this state, do we think any objection can be urged to the instruction. (McCurrie v. Southern Pacific Co., 122 Cal. 558, [55 Pac. 324], and eases cited; Babcock v. Los Angeles Traction Co., 128 Cal. 173, [60 Pac. 780]; Harrison v. Sutter-Street Ry. Co., 134 Cal. 549, [66 Pac. 787]; Osgood v. Los Angeles etc. Co., 137 Cal. 280, [94 Am. St. Rep. 171, 70 Pac. 169].) It is unnecessary, therefore, to examine criti *405 eally the cases cited from other states. But it may be observed that the instruction involved in Chicago Street Ry. Co. v. Catline, 70 Ill. App. 97, was essentially different from the one given in this case, and that under the authorities cited, the decision in Denver etc. Ry. Co. v. Fotheringham, 11 Colo. App. 410, [68 Pac. 978], cannot be regarded as law in this state. As to the instruction refused, we see no error; or, at least, no error of which the appellant can complain. There was, as claimed by the appellant, but one issue in the case, and on this issue. the jury were fully instructed by the instructions given at the request of defendant already referred to. To have given the instruction asked for would, therefore, have served only to confuse the jury as to the only issue before them. The case of Kahn v. Triest-Rosenberg Cap Co., 139 Cal. 345, [73 Pac. 164], and the case of Patterson v. San Francisco etc. Electric Ry. Co., 147 Cal. 178, [81 Pac. 531], have no application. It may be admitted that, had the instruction been given, it might (in view of the ambiguous nature of the term “burden of proving”) have been so construed as not to be in conflict with the instruction given. (Scott v. Wood, 81 Cal. 398, [22 Pac. 871].) But in its most natural construction, and in the construction that would most probably have been given to it by the jury, it would be contradictory; and, as there was but the one issue before the jury, it could have but served to mislead them. The judgment and order appealed from are affirmed. Gray, P. J., and Allen, J., concurred. A petition to have the cause heard in the supreme court after judgment in the district court of appeal, was denied by the supreme court on October 6, 1905.