Bryant v. Market Street Railway Co.

WARD, J. A rehearing was granted in this case in order to give further consideration to the contentions of appellant, vigorously urged, that the court had misstated, overstated or understated portions of the evidence. A rereading of the record, in the light of these contentions, has convinced us that the opinion heretofore filed correctly states all of the material facts, and that every fact stated in the opinion is supported by substantial evidence, or by reasonable inferences from that evidence. It must be remembered that “when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.” (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429 [45 P.2d 183]; see, also, Albaugh v. Mt. Shasta Power Corp., 9 Cal.2d 751 [73 P.2d 217] ; Bellon v. Silver Gate Theatres, Inc., 4 Cal.2d 1 [47 P.2d 462] ; Raggio v. Mallory, 10 Cal.2d 723 [76 P.2d 660]; Estate of Bristol, 23 Cal.2d 221 [143 P.2d 689] ; Juchert v. California Water Service Co., 16 Cal.2d 500 [106 P.2d 886] ; Peri v. Los Angeles Junction Ry., 22 Cal.2d 111 [137 P.2d 441]; Laherty v. Connell, 64 Cal.App. 2d 355 [148 P.2d 895].) — 510 — One of the basic questions of fact involved in this appeal is where the southbound Powell Street car stopped after crossing 0 ’Farrell Street. We think that the evidence supports the implied finding of the jury that when the Powell Street car stopped it was over the intersection and standing on the down grade. The plaintiff testified that he saw no car in the intersection as he approached. That supports the- reasonable inference that no car was there. The grip-man of the Powell Street car positively testified he held onto the cable until the back end of his car was even with the south property line of 0 ’Farrell Street. While .there are inconsistencies in both witnesses’ testimony these inconsistencies were for the jury. If the car was over the brow of the hill when it stopped then there was no need to keep a loose grip on the cable. To do so obviously created a trap for any car traveling on 0 ’Farrell Street at that intersection. The danger to such ears if the Powell Street car held the cable after passing over the intersection is so obvious that the jury was justified in its implied finding that defendants were negligent and such negligence constituted the proximate cause of the accident. We are satisfied that the opinion heretofore filed correctly disposes of all questions of law and fact presented on this appeal. We therefore adopt that opinion as the opinion of this court. It is as follows: Defendant appeals from a judgment on a verdict for plaintiff in an action for damages for personal injury. It is urged that there is no evidence of negligence on the part of defendant; that in fact the evidence shows that the accident was caused solely by reason of the negligence of plaintiff. It is also claimed that the trial court erred in denying a motion for nonsuit, a motion for a directed verdict and a motion for a judgment notwithstanding the verdict. An examination of the evidence indicates that a narration thereof is sufficient to answer the above contentions. Neither the amount of damages awarded, $27,500, nor the testimony in support thereof is attacked. Defendant does suggest, however, that the size of the verdict is referable to the circumstance that it was returned a few days before Christmas, a time when a jury might well feel generous. A point worthy of consideration is the contention that the court erred in giving an instruction on the subject of custom. — 511 — The accident occurred in March, 1942, about 8 p. m. at the intersection of 0 ’Farrell and Powell Streets in the city of San Francisco. The physical facts appear as follows: At the intersection of O’Farrell and Powell Streets four cable car tracks intersect. There are four cables, two used by the O’Farrell Street line for propelling its cable ears, operating easterly and westerly, and two by the Powell Street line, operating northerly and southerly. The 0 ’Farrell Street cables were installed at a lower level than those of the Powell Street line. The cables operated in slots, and, when disengaged from the car those of the Powell Street line were normally at a level about three inches below the bottom of the grip of an O’Farrell Street ear as it crossed the intersection. The O’Farrell Street car was equipped with a grip which extended into the slot, the grip being used to hold the moving cable, thus transmitting motive power to the car. The grip on the 0 ’Farrell Street car as extended into the slot always remained at the same level, not changing its position in the operation of the car. The bottom of the grip was provided with a mechanical device which held the cable. The device could be released by the gripman at any time he desired, allowing the cable to drop from the grip. By reason of the fact that the Powell Street cable was above the level of the O’Farrell Street cable, it was necessary for the westbound 0 ’Farrell car to drop and let go of its cable before reaching the Powell Street tracks. A bumper was inserted along the O’Farrell Street tracks at a point before the Powell Street tracks were reached so that if the O’Farrell Street gripman failed to drop his cable the bumper would prevent any damage to the cables operating the Powell Street line. Since the Powell cables were above the O’Farrell Street cables a Powell car could proceed across the intersection without dropping the cable. However, holding the cable would raise it several inches so that if a Powell Street car were within the intersection, or within two or three ear-lengths of the property line of O’Farrell Street, the cable would be raised to such a point that the grip of a crossing 0 ’Farrell Street car would strike this cable. Northbound cars on Powell Street are moving upgrade and must therefore hold onto the cable. A signal has been placed at the southeast corner of the intersection to warn O’Farrell Street operators of the presence of northbound Powell Street cars at or near the intersection. The north — 512 — bound ears at all times have the right of way. There is no signal to warn of the presence of southbound Powell cars. Plaintiff Bryant was a gripman on the 0 ’Farrell Street car proceeding westerly on the level toward the intersection at Powell Street, which at that particular time was free of either north or south bound cars. The O’Farrell car halted at about the east property line of Powell Street and took on passengers. Plaintiff looked to see whether the signal for northbound cars was clear. He then started up, holding onto the cable to gain momentum, but dropping it at the “let go” mark so as not to be stopped by the protective bumper. Plaintiff testified: “I made the let-go and then I hit something that stopped me suddenly, and that is all I know.” Plaintiff’s grip hit the Powell cable which at the moment was being held by a southbound Powell car. The Powell car had stopped out of the intersection but near the south curb line of O’Farrell Street in order to avoid striking an automobile. Plaintiff and defendant differ in their versions of the duties of gripmen when crossing the intersection of Powell and O’Farrell Streets. This variance grows out of instructions given Powell Street gripmen, employees of the defendant system, and certain testimony relative to custom. Student gripmen of defendant were given instructions which included a list of questions and answers. One of the questions was: “Where are the six places to coast ? ’ ’ Coasting means that the grip does not hold the cable. The answer included the blocks on Powell north and south of O’Farrell. Whether such instructions were mandatory or optional was a disputed matter. Defendant officials testified they were optional. Plaintiff contended successfully before the jury that they were mandatory. The assistant superintendent of the California Street Cable Car Company (the O’Farrell line) was called by plaintiff. The following résumé of his testimony favoring defendant was given on cross-examination: That from his observation when a southbound car on Powell Street stops north of O’Farrell, the gripman on the Powell car holds on to the cable and enters the intersection. When he reaches the O’Farrell tracks he throws the cable out if the track ahead is clear. In case the track ahead is obstructed so that he cannot continue down Powell Street, some gripmen hold the cable and some do not. — 513 — The instructor of gripmen on the O’Farrell line testified against the position taken by plaintiff on the trial as follows : “Now, your instructions with reference to-that you gave to Mr. Bryant with reference to the distance that the Powell Street car should be before it was safe to go across - will you tell us what those instructions were in that regard. A. Well, I instructed him to wait until the Powell Street ear got three or four car lengths over the crown. Q. Three or four car lengths over the crown? A. Three or four ear lengths over the crown before he started his car. Q. Now, when a car is standing there in that area, that is, a southbound Powell Street car is standing somewhere in the area of that south cross-walk there of O’Farrell Street, have you, as a gripman standing on your platform on the westbound car, a way of determining whether that gripman has dropped the cable? A. If the car isn’t crowded you can see when he has thrown the lever over forward and you know that he has dropped the cable out; if the lever is standing straight up, he has got the rope in the cable [grip], Q. And can you see that from your position in the car? A. Yes. Q. Did you give Mr. Bryant instruction as to how he should act if a car was crowded, and he couldn’t see the lever? A. I gave him instructions to ring the gong and get a signal back from the gripman so that he was satisfied it was safe to get across.” Other witnesses for defendant company, including former employees, testified favorably to defendant. Had the jury decided in favor of defendant there would be evidence sufficiently substantial to uphold such verdict. This is equally true of the evidence supporting plaintiff’s side of the case, which the jury was entitled to believe. This evidence consists in part of the instruction to Powell Street gripmen to coast on Powell Street between Sutter and Ellis, and plaintiff’s statement that he was familiar with the instructions through talking with men on the Market Street and O’Farrell Street lines. There was also the testimony of fellow employees that as soon as the back end of the Powell car was clear the 0 ’Farrell car could proceed. There is a decided conflict in the evidence relative to negligence on the part of plaintiff. The trial court could not say as a matter of law that plaintiff was guilty of contributory negligence. Evidence of custom was introduced — 514 — by both plaintiff and defendant. Defendant argues that there is no authority for holding a party negligent “by reason of having failed to follow a usual custom to do a thing in a certain specified way or manner” and that the evidence in this case does not “rise to the dignity of establishing any custom or practice to drop the cable under the conditions and circumstances shown to have existed.” The latter contention might well be addressed to a jury. On the first consideration there is evidence of the custom of the Powell Street gripman in passing over the 0 ’Farrell Street tracks. In addition, there is the rule referred to by each side during the trial. It may be inferred from the testimony of plaintiff that he had knowledge -of defendant’s rule and custom and that he relied thereon and was justified in operating the 0 ’Farrell car over the Powell tracks under all the circumstances as they existed at the time of the accident. (Ross v. San Francisco-Oakland Terminal Railways Co., 47 Cal.App. 753 [91 P. 703]; Gett v. Pacific G. & E. Co., 192 Cal. 621 [221 P. 376] ; Delmonte v. Southern Pacific Co., 2 Cal.App. 211 [83 P. 269] ; Sanchez v. Pacific Auto Stages, 116 Cal. App. 392 [2 P.2d 845].) From all the evidence introduced by plaintiff and defendant, a reasonable inference may be drawn that “coasting” means moving on a car’s momentum, without gripping the cable; that a ear may coast as well while holding the cable “loosely.” This latter method is often used so that the grip-man may change quickly from coasting to the use of the cable as a means of propelling the car. Because the Powell cable runs above the O’Farrell cable, a southbound Powell car can coast across the intersection by holding the cable loosely in the grip. It is necessary that the westbound O’Farrell car drop its cable before reaching the Powell tracks. On this occasion the southbound Powell car was holding the cable, after passing the intersection, to permit an automobile to park. The gripman could have held the ear in its position with the use of the brakes. The dangerous condition that would exist if the Powell Street car held onto the cable while within three or four car lengths of 0 ’Farrell Street was so real that a warning light had been erected to warn 0 ’Farrell Street car operators of the approach of northbound Powell Street ears. The fact that no such signal had been erected to warn of the presence of southbound cars may be some indication that the company did not think there was danger — 515 — from such cars. The only way that there would not be danger from the southbound cars would be if such ears dropped the cable. Here the operator of the Powell car, after crossing the crown of the intersection, and while on the down grade, continued to hold the cable. He should have known that in thus even loosely holding the cable after passing the intersection he was creating a dangerous condition for any 0 ’Farrell Street car. The jury could reasonably infer from the evidence that such conduct violated the rule of the company and the custom of operators. Whether under all of the circumstances it was negligence for the gripman to act as he did was a question for the jury. The motion for non-suit, the motion for a directed verdict and the motion for judgment notwithstanding the verdict need be given no further consideration. The court instructed at the request of plaintiff: “If you find from the evidence that it was the duty or it was the custom of the gripman on the southbound Market Street cable cars to hold the cable with the grip while crossing the tracks of the California Street Cable Company at O’Farrell Street and then immediately drop or let loose of said cable and that plaintiff had knowledge of such custom or such duty, and that such custom or duty had been the practice on and prior to the 28th day of March 1942, and you further find that such custom or duty was generally known to and of common knowledge among the gripmen of the California Street Cable Company, and you further find that F. A. Van Beeber, the gripman of the Market Street Railway Company, did not let go of and drop the cable immediately upon crossing or immediately after the rear end of the car he was operating had cleared the southmost rail of the California Street cable car, you may consider these circumstances upon the question of whether defendant, Market Street Railway, was negligent. ’ ’ Defendant urges that the instruction was erroneous and highly prejudicial for the following reasons: “First. It allows the jury to find from the evidence the existence of a duty or custom with reference to holding the cable and dropping the same without any reference to the particular circumstances and conditions which were present at the time the Powell Street car was required to stop by reason of the obstruction on its track.' Second. It allows the jury to find that a custom existed with reference to holding and dropping the cable when there is no evidence in the record to justify — 516 — the finding of the existence of any such custom or duty. Third. It allows the jury to find that the plaintiff had knowledge of such custom or such duty when there is no evidence in the record to justify the finding of any such fact. Fourth. It allows the jury to find that such custom or duty had been the practice on and prior to the 28th day of March, 1942, when there is no evidence in the record to justify the finding of any such fact. Fifth. It allows the jury to find on something which was generally known to and common knowledge among the gripmen of the California Street Cable Company, where their knowledge on such a subject would be immaterial to any issue on this case as it is only the knowledge of the plaintiff, and his reliance thereon, which could have caused him to have acted in such manner as to bring about his injury, and there is no evidence in the record that he had any knowledge of any such alleged custom. Sixth. It allows the jury to find that the gripman of the Market Street Railway Company was negligent if he did not let go of the cable and drop the cable upon crossing, or immediately after the rear end of his car had cleared the southmost rail of the California Street cable car tracks when there is no evidence in the record that under the particular conditions and circumstances then existing the gripman was supposed to so act, or that ordinary care required him to so act; on the contrary, the evidence being that whether he held the cable or dropped the same, under the circumstances which then existed, was a matter for his judgment and that holding the cable was good railroading and a safe practice. This instruction is also erroneous in that it violates the well established rule that instructions should not single out, emphasize, and argue to the jury, a portion of the evidence.” The second and sixth grounds refer to the evidence. Defendant claims that there is no evidence of a custom or that grip-men were to act in a designated manner. This point has been heretofore discussed. The third, fourth and fifth points refer to the knowledge of plaintiff of the duty, practice and custom of defendant. These matters likewise have been disposed of previously. With reference to the first point, if defendant, after introducing evidence on its own behalf on the subject of usage, custom, common practice and the circumstances and conditions present at the time of the accident, desired that an appropriate instruction be given, it should have offered one. - Our attention has not been called to an instruction proposed by defendant on this subject. Evidence of — 517 — operating rules and customs to be admissible must be material to an issue in the case. If not material, instructions thereon should not be given. In this ease one of the principal issues was the rule and custom of defendant in operating cars and in particular this car at the time of the accident. The court in other instructions specifically referred to negligence, if any, “at the time and place alleged in the complaint” and “in the light of all the surrounding circumstances as shown by the evidence. ’ ’ At the request of defendant the court also fully instructed on contributory negligence. The objection that the instruction was emphasized by giving it a second time is without merit. About an hour after the jury retired they requested to be returned to court to hear the testimony of one of the witnesses read. After a reading of the testimony one of the jurors requested the rereading of the “instruction regarding Mr. Bryant’s prudence in proceeding across the intersection relying on the custom of the Market Street Railway to drop their cable.” The instruction was read. It might have been error not to do so. No objection was made before or after the jury was returned to the jury room, and in the opinion of this court no valid objection could be made. The judgment is affirmed. Peters, P. J., concurred.