George v. Los Angeles Railway Co.

—Action for personal injuries. The jury-found a general verdict for defendant. Against plaintiff's objection, the court submitted certain questions to the jury,, the answers to which were favorable to defendant.

The appeal is from an order denying plaintiff’s motion for new trial. The evidence disclosed the following facts:

The defendant was, at the time of the accident, engaged in

Appellant confines his argument exclusively to alleged erroneous instructions.

The court gave six instructions as asked by plaintiff, with some modifications as to two of them not 'now objected to. These instructions were quite favorable to plaintiff, and we do not understand that plaintiff questions their correctness. His contention is, that the court gave certain instructions .at request of defendant, two of which (11 and 12) are contradictory of and inconsistent with the instructions given for plaintiff, and do not correctly state the law; that instructions 1 and 2 are outside the issues; that instruction 10 is misleading, and that instruction 8 does not state the law correctly.

Defendant’s instructions 1 and 2 were that “street railway companies are not required to use the same care to avoid injuring persons who are not passengers as they are to avoid injury to persons who are passengers”; and that “the plaintiff was not a passenger, nór entitled to the rights of a passenger, when the injuries of which he complains were received.” We suppose these instructions were given because there was evidence that plaintiff was riding on the trailer-cars. The jury were not told what the defendant’s liability was to passengers, and to inform the jury that plaintiff was not entitled to the rights of passengers left- the instruction incomplete. It was apparently outside the issues. Still, we cannot see how it could have misled the jury, especially as they were fully instructed as to the law applicable to the facts in the case. The rule invoked by plaintiff does not go so far as to make all irrelevant instrue

Instruction 8 was as follows: “There is no presumption of law that plaintiff did not have capacity to understand that it was dangerous for him to go in front of a moving ear; and, unless the evidence shows that he did not have such capacity, contributory negligence on his part, if shown by the evidence, is a good defense to the action.”

We are asked to hold to the rule of the common law that minors under the age of fourteen years axe presumably without, discretion and judgment, and that evidence is necessary to remove the presumption. It was proper to leave the question of contributory negligence to the jury free from any presumption as to plaintiff’s incapacity. ■ The only testimony as to the fact was .given by 'the plaintiff’s mother, who said that he “was not a particularly bright or intelligent child.” The law upon the point is stated in Studer v. Southern Pac. Co., 121 Cal. 400 ; 66 Am. St. Rep. 39 .

Instruction 10 was as follows: “Whether the defendant’s trailer-cars should have been permitted to stand on the track in the street during the hours of the day when they were not needed for carrying passengers, was a question to be determined by the city authorities, and is a wholly irrelevant and immaterial question in this ease.”

It is objected that this instruction was confusing and misleading to the jury, because they had been previously told that the questions of the manner of leaving the cars, the place where they were left, et cetera, were to be considered by them in determining whether defendant was 'negligent or not. It seems to us that this particular instruction was intended to show simply that the city authorities alone could determine whether the cars should be permitted to be left on the street for the convenience of defendant. It is true that the right to so use the street must come from the city, and in so saying to the jury the court did not weaken the force of the other instructions as to the care defendant should exercise in so occupying the street.

Instruction 11 was as follows: “If the jury believe from the evidence that any element of danger connected with the defendant’s trailer by which plaintiff was injured was not a

The jury had been told “that the fact, as shown by the evidence, that the brakes of the car in question were set when the cars were left on the track in the way in which such brakes were usually set or fastened, or according to the usual custom of defendant, is a matter to be considered by the jury in passing upon the question as to whether the. defendant exercised ordinary care in the way it placed and maintained said ears at the place in question; .... and they should consider the danger, if any there was, attending the leaving of the cars at the place in question, whether said cars were of a dangerous nature likely to cause an injury of the kind complained of, and were likely to attract children thereon for amusement and play, the manner in which they were fastened, the publicity of the place, whether defendant, in the exercise of reasonable care and diligence, should have securely fastened them, or, if that was impracticable, whether, in the exercise of such diligence, it was its duty to leave them in charge of an attendant,” et cetera. ' It is claimed that these instructions are contradictory of instruction 11, supra, and irreconcilable with it.

If the last instruction is a correct statement of the law, as we think it is, plaintiff cannot complain even if it was inconsistent with the instructions which were manifestly more favorable to plaintiff. If the jury had given their .verdict for plaintiff the defendant might have complained. Plaintiff contends, however, that instruction 11 was not a correct statement of the law because it violates the principles laid down in the “turntable cases,” which, it is claimed, apply here. The rule in these cases as held by this court will be found in Barrett v. Southern Pac. Co., 91 Cal. 296 ; 25 Am. St. Rep. 186 . In a later case (Peters v. Bowman, 115 Cal. 345 , 56 Am. St. Rep. 106 ), it was said: “The rule of the turntable cases is an exception to the general

The cases illustrating the principles of the turntable cases are quite fully set forth in the opinion and need not he restated.

The recent ease of Kaumeier v. City Electric Ry. Co., 116 Mich. 306 , is very similar to this one, the principal difference in its facts being that in the Michigan ease the car had no brakes. It was testified by the conductor in charge of the cars in that case that when the flat-car was left at the point where the accident happened “he blocked the wheels with a stone and a stick, which could he removed by the kick of a small boy, if he hit it hard, and that he always blocked this ear every time he left it.” The court in its decision gave the question very careful consideration, reviewing the turntable cases from the first one—Rairoad Co. v. Stout, 17 Wall. 657 —and reached the conclusion that they do not furnish the rule by which such a case as this is to he determined. It was held upon the undisputed facts that the ■ court should have instructed the jury to find a verdict for the defendant. Speaking of Railroad Co. v. Stout, supra, the court said: “It is difficult to see how that case can be likened to the present. In that case, a dangerous piece of machinery was left open, exposed,- and unguarded, to the knowledge of defendant. The turntable itself was dangerous. The car in question in the present case was not dangerous in its construction. It was a plain car, with four wheels, with no machinery about it. It had no brake, but was a small platform car. It is true that it stood upon a track where it might be moved by several children applying their united strength. Several children might in the same way move a wagon or- carriage left beside the highway. We apprehend that - no claim of negligence could be sustained against the owner of such a vehicle if one of the children climb

It is not contended that these trailer-cars were objects dangerous to children, and it has been held that cars are not “dangerous machines” within the meaning of the rule in some of the turntable eases (Elliott on Railroads, sec. 1260); but it is urged, as it was urged in the Michigan ease, that because the cars were left in a condition which made it possible for children to loosen the brakes and push the cars along the track the ears became dangerous, and, being attractive objects to children, they were likely to move them and thus be put in danger. It will be observed that the court instructed the jury that if they believed from the evidence that the element of danger connected with these trailers was not a hidden or concealed danger, but was open to the observation, and could be comprehended by a boy of plaintiff’s age with average intelligence, then in such case if defendant’s cars were held by brakes of the ordinary kind, and the brakes were set in a manner to hold the ears where they were left, unless some one loosened them, the plaintiff cannot recover. We think such an instruction takes the case out of the class to which the turntable cases belong, and like cases, such as Branson v. Labrot, 81 Ky. 638 , 50 Am. Rep. 193 , where lumber was negligently piled, and analogous cases, and stated the law correctly as applicable to the undisputed facts in this case.

Appellant alleges error in submitting certain special interrogatories to the jury for answer. It is said that they were of a character calculated to lead up to a general verdict for defendant and did not embrace all the issues involved. The court was authorized by section 625 of the Code of Civil Procedure, to instruct the jury “to find upon particular questions of fact -to be stated in writing” if the jury render a general verdict. It is a matter resting’in the discretion of the court (Smith v. Occidental etc. S. S. Co., 99 Cal. 462 ); and the court was not required to thus submit all the issues.

The order should be affirmed.

Cooper, C., and Britt, C., concurred.

For the reasons given in the foregoing opinion the order is affirmed. McFarland, J., Henshaw, J., Temple, J.