Babcock v. Los Angeles Traction Co.

HARRISON, J. The plaintiff recovered judgment against the defendant for personal injuries alleged to have been sustained hy reason of the negligence of the defendant. At the close of the testimony on behalf of the plaintiff, the defendant moved for a nonsuit upon the grounds that the plaintiff had shown no evidence of negligence on the part of the defendant, and that it appeared from the evidence that the plaintiff was himself guilty of contributory negligence. The motion was denied,-and testimony was thereupon given on behalf of the defendant, and upon its conclusion the jury rendered its verdict in favor of the plaintiff. The appeal is from the judgment and order denying a new trial. It is not contended that any part of the evidence was improperly received, or that it was insufficient to justify the verdict, but the appellant contends that the court erred • in refusing to grant a nonsuit. At the time the motion for a nonsuit was made evidence had been given to the following effect, viz.: The plaintiff, a man sixty-one years of age, was a passenger upon one of the lines of street railroad operated hy the defendant in Los Angeles, and was carried from the corner of Third and Spring streets as far as to the intersection of Sixteenth and Bush streets, where, in rounding the curve of the track at that point, he was thrown from the car to the street and seriously injured. The ear in which he was carried was constructed with three sections .—an inclosed part, and at each end thereof an open space, with *177 seats across the car, separated by an aisle between them. When the plaintiff got upon the car 'it was crowded with passengers occupying all the seats and standing in the aisles and open spaces, and he took a position in the open portion at the front of the car, on the left-hand side, between the door and the outer line of the car, standing with his back against the inclosed part of the car. This position he retained until he started to get off the car. On the outer line of this side of the car was a guard rail to prevent people from getting off on that side. After the car had reached Sixteenth street it ran along that street at a speed of from ten to twelve miles an hour, some of the witnesses sajdng as high as fifteen miles an hour, and continued at the same rate of speed after the signal to stop had been given, and while it was rounding the curve, and did not stop until it had gone about a hundred feet beyond the crossing. While the car was going along Sixteenth street, and after it had passed Constance street, about three hundred feet before reaching Bush street, the plaintiff signaled to the conductor to stop the car, and the conductor recognized his signal and rang the bell for the motorman to stop. Thereupon the plaintiff started to go across the car to the right-hand side, and had taken two or three steps for that purpose, and was in the act of reaching with his left hand—his right hand holding an umbrella and two parcels—for the hand-rail, when the car came to the curve at the crossing of the streets, and gave a lurch which threw the plaintiff into the street. The plaintiff testified that he had been accustomed to ride upon that line twice a day for upward of a year prior to this time; that during that time it had been the custom of the defendant to stop its cars and let passengers off on the Sixteenth street side of the crossing before making the curve; that he had got off on that side of the curve as often as upon the other; and that at the time he was moving across the car he was getting ready to get off, for the reason that he expected it to stop on Sixteenth street. The court properly denied the motion for a nonsuit. That the evidence given on behalf of the plaintiff tended to establish negligence on the part of the defendant is not open to dispute, and it was for the jury to determine whether it-was sufficient for that purpose. When the plaintiff showed that the defend *178 ant had assumed to carry him as a passenger upon one of its cars, and that while being so carried he had sustained an injury by reason of the manner in which the car was propelled along its track, a prima facie case of negligence was established, which in the absence of any other evidence entitled him to a recovery. In McCurrie v. Southern Pac. Co., 122 Cal. 558, we said: “A prima facie case is established when the plaintiff shows that he was injured while being carried as a passenger by the defendant, and that the injury was caused by the manner in which the defendant used or directed some agency or instrumentality under its control. The carrier of passengers is required to exercise the highest degree of care in their transportation, and is responsible for injuries received by them while in the course of transportation which might have been avoided by the exercise of such care. Hence, when it is shown that the injury to the passenger was caused by the act of' the carrier in operating the instrumentalities employed in his business, there is a presumption of negligence which throws upon the carrier the burden of showing that the injury was sustained without any negligence on its part.” Heither was the court authorized to withdraw from the jury the determination of the issue of contributory negligence on the part of plaintiff. The court could not declare that it was contributory négligence on his part to start to get off from the car before it had come to a full stop. There is no rule of law which requires a passenger.in a street-ear to retain his seat or other position until the car has actually stopped, and it is a matter of universal observation that thousands every day leave their seats to get off before the car has stopped, without sustaining any injury. (Nichols v. Sixth Ave. R. R. Co., 38 N. Y. 131; 97 Am. Dec. 780; Whalen v. Consolidated Traction Co., 61 N. J. L. 608; Consolidated Traction Co. v. Thalheimer, 59 N. J. L. 474.) The claim of the appellant that the plaintiff’s attempt to get off the car while it was rounding the curve was itself a hazardous act from which his injury resulted, rests upon assuming the existence of other facts which could be determined only by the jury. If the plaintiff had the right to expect that the car would stop on the hither side of Bush street, he would not *179 expose himself to any unusual risk in moving across the car while it was going along Sixteenth street, for the purpose of getting off; and while the speed at which the car was propelled along Sixteenth street might not, of itself, expose him to any risk in moving across the car, such speed would become exceedingly dangerous in rounding the curve at the intersection of the streets, and would, of itself, be evidence of negligence on the part of the defendant. It needs no argument to show that it would be negligence for the defendant to run its car against and around such a curve at a speed of fifteen or even ten miles an hour, while passengers were standing upon the open part of the car, without warning or protecting them against the danger of being thrown off. The defendant cannot claim that it was negligence on the part of the plaintiff to stand up while riding, or to ride upon the outer part of the car, after it had assumed to carry him as a passenger, and had not furnished him with any seat upon the inside of the car. The fact that the plaintiff had certain packages in his right hand, and attempted to take hold of the rail with his left hand, was not necessarily a contributing cause of his injury. If he was authorized to believe that he could get off before the curve was reached, he would not need either .hand to protect himself against any lurch of the car. The defendant has also excepted to the correctness of two of the instructions given by the court; but we are of the opinion that the court committed no error therein. The judgment and order are affirmed. Van Dyke, J., and Garoutte, J., concurred.