Kelly v. Santa Barbara Consolidated Railroad

Plaintiff sued for and recovered damages for injuries sustained by him while a passenger upon an electric street-car of defendant company. From the judgment and from the order denying its motion for a new trial defendant appeals. The principal points urged upon this appeal are the asserted errors in the instructions given by the court. For the. proper consideration of these points a brief presentation of the evidentiary facts becomes necessary.

Upon the Fourth of July plaintiff, desiring to attend the festivities to be held at Oak Park, took passage upon a crowded car of defendant. The seats and platforms were filled, passengers were standing on the steps, and he himself was obliged to take position upon the lowest step of the left-hand forward end of the car. His fare was tendered and received. After proceeding a short distance the car turned on to a switch or sidetrack to pass around other cars standing upon the main track. Ofie car was so standing on the main track near the place where the car upon which plaintiff had taken passage would come back on to the main line. This other car was of different construction, containing two running boards or steps projecting beyond the body of the car; whereas only the bottom step—the step upon which plaintiff was standing—projected beyond the body of that car. As the car upon which plaintiff was riding drew near the stationary car the steps of the latter swept him off his feet and he was severely crushed between the bodies of the two cars. As matter of contributory negligence, defendant offered evidence to prove that, con

The court instructed the jury as follows:

“20. Every street railroad corporation must furnish on the inside of its passenger cars sufficient room and accommodations for all passengers who pay their fare or buy tickets.

“21. A carrier of persons for reward must not overcrowd or overload his vehicle and must give to passengers all such accommodations as are usual and reasonable.

“22. A carrier of persons should not allow so many passengers upon its cars as to overcrowd them, and if unable to prevent overcrowding, the carrier has a right to refuse to move its cars under such circumstances, but if a carrier does not adopt such course and undertakes to transport all of the passengers that were on board its cars, whether within the cars or on its platform, it is under additional care, commensurate with perils or dangers surrounding the passengers by reason of overcrowded condition of its cars.”

These instructions declared with fairness the law of this state governing the conduct of common carriers of passengers as expressed by the Civil Code, sections 483, 2102, 2184 and 2185. These sections, while for the most part having direct

The result is that under such circumstances, as has been said, a new contract springs into existence between the passenger and the company. The passenger in voluntarily taking a position of greater peril assumes the natural, obvious risks attending such peril. Manifestly, upon the steps or running-board of a car his position is not so safe as though he were seated within the body of the car. It becomes incumbent upon him, therefore, in the exercise of the due care which the law always exacts, to take greater precautions for his own safety than if he were so seated. Upon the other hand, the company in accepting the passenger’s fare, with knowledge of the increased danger of his position, is under obligation to use greater precautions in the operation of the ear for the protection of such passengers than would be necessary if all were seated. Thus, for example—and it is a practical one—there are certain curves in street-car tracks which the cars take at a rate of speed not at all dangerous to seated passengers, but which w’ould be quite perilous to unwarned passengers standing upon the steps. It would be clear negligence for the operators of a car to drive it around such a curve without warning to the standing passengers at the same rate of speed that would not be negligent if every passenger was seated. Such clearly being the law, the instructions complained of might have served to mislead the jury into believing that in the particular case the gravamen of the charge of negligence was that defendant did not give plaintiff a seat or standing-room upon the platform. Plaintiff, however, waived whatever right he had to such accommodations by voluntarily taking his position upon the step and paying his fare for passage. He agreed with the company that as matter of self-preservation he would take such reasonable care of himself as his position of added peril demanded, and the company in turn agreed with him that it would so operate its car as not to expose him to any greater peril than his position necessarily imposed. That the evidence established a failure of the company to perform that duty is so overwhelming as not even to be in dispute. It brought the car upon which plaintiff was thus standing into

But there was still left for the jury to determine whether the plaintiff was conducting himself with due care at the time he received the injury. Or, in other words, whether his heedlessness and failure to exercise due 'care while thus standing in a position of peril was contributory negligence such as to bar his right of recovery. We have heretofore outlined what that evidence is. Upon it, however, the court instructed the jury as follows:

“23. I charge you, as matter of law, that standing on the-steps of a street-car propelled by electricity is not contributory negligence and the more especially so if such street-car is so overcrowded that the street-car company cannot furnish such passenger a seat on the inside of the car, or standing room, and a passenger so standing on the steps of a street-car moved by electricity, would not relieve the .owner of the car from the exercise of reasonable care to avoid injury, and whether such reasonable care was exercised while the passenger is in such position, under the circumstances of the case, is one of fact for the jury.

“27. It is not contributory negligence for a passenger to stand on the outer part of a street-car, when the conductor on the car has accepted such passenger’s fare, but has not furnished such passenger a seat in the car.”

Elsewhere, the court instructed the jury as follows:

“24. When a street-ear in charge of employees of the company owning the car is permitted by such agents or employees to become so overcrowded that seats cannot be furnished to a passenger, who has paid his fare, inside the car, and the passenger cannot obtain standing room in the car, it is not negligence, nor contributory negligence, for a passenger to stand on the steps of the street-car, and if he does for such reasons stand upon the steps of a street-car, and an accident occurs in which he is injured, the ownérs of the street-car will not be relieved from the exercise of reasonable care to avoid injury; and whether such reasonable care was exercised while the passenger was in such position is one of fact to be determined by the jury.

“31. Tou are instructed that if you believe from the evidence that the plaintiff failed to exercise ordinary care in

taking or retaining Ms position on the lower step of the car on which he was riding, and that he was guilty of negligence in that respect, and that such negligence contributed proximately to the injuries sustained by him, then your verdict must be for the defendant, even though you may believe from the evidence that the defendant was guilty of negligence in operating its ears.”

Over the giving of instructions 23 and 27, twofold complaint is made that they misstate the law and that they violate the constitution in charging the jury upon a question of fact; that the instructions are equivalent to telling the jury that the plaintiff was not guilty of contributory negligence in standing as he did and conducting himself as he did while standing upon the steps of the ear; that instruction 31 fairly states the law to the effect that it was for the jury to determine whether plaintiff while so standing failed to take reasonable care and precaution for his own safety, and, if he did not, was guilty of contributory negligence; but the result is an irreconcilable conflict between the instructions, working serious invasion of defendant’s right to a verdict from an impartially instructed jury. Respondent makes answer to this in many ways. Thus, he argues that the error, if error, is immaterial, as the question of contributory negligence, because of its faulty pleading in the answer, was, under the rule declared in such cases as Smith v. Buttner, 90 Cal. 95 , [ 27 Pac. 29 ]; Stephenson v. Southern Pacific Co., 102 Cal. 144 , [ 34 Pac. 618 , 36 Pac. 407 ], and Crabbe v. Mammoth Channel etc. Co., 168 Cal. 500 , [ 143 Pac. 744 ], not before the court. But however imperfect the answer may be in its failure to allege the facts constituting the asserted contributory negligence, nevertheless the answer plainly relied upon contributory negligence. The case was tried and evidence was offered pro and con upon the theory that contributory negligence was in issue; both parties asked for instructions to the jury upon the question, and we will not here, especially in absence of any demurrer to the answer for such imperfection, consider the question. (Weidenmuller v. Stearns Rancho Co., 128 Cal. 623 , [ 61 Pac. 374 ]; McDougald v. Hulet, 132 Cal. 154 , [ 64 Pac. 278 ]; Willey v. Crocker-Woolworth Nat. Bank, 141 Cal. 508 , [ 75 Pac. 106 ].)

Further, respondent argues that evidence of contributory negligence is so totally lacking that (a) the error, if error,

Finally, respondent invokes section 4½, Code of Civil Procedure, and section 4%, article VI, of the constitution, whereby courts are commanded to disregard any “instruction . . . which, in the opinion of said court, does not affect the substantial rights of the parties. ’ ’ But clearly this error vitally affects appellant’s substantial rights, and neither the provision of the constitution nor of the statute can be successfully invoked.

Wherefore the judgment and order are reversed and the cause remanded.

Melvin, J., and Lorigan, J., concurred.

Hearing in Bank denied.