Wood v. Los Angeles Railway Corp.

Action for personal injuries by Carolyne Wood who, while attempting to cross West Ninth Street, in

Appellant insists that the verdict was not justified by the evidence, and she attacks numerous instructions as being so erroneous that the jurors were misled greatly to her prejudice. Error is also predicated upon the refusal of the court to give certain offered instructions.

The accident occurred at or near the corner of Spring and West Ninth Streets. Defendant operates cars upon double tracks extending along Ninth Street and curving into Spring ^Street extending thence north from Ninth along Spring Street. The car in question, which is about forty feet long, had traveled south on Spring Street and was turning into Ninth. It was on the right-hand track, that is the westerly track on Spring Street and the northerly track on Ninth Street. According to plaintiff’s own testimony, she was going north on Spring Street, and she attempted to cross Ninth Street. Just before crossing she saw a team coming from the east, that is from Spring Street into Ninth Street. She started to cross in front of the team, which was attached to a heavy wagon. Then for the first time she saw a car coming around the curve at a rapid rate. “I then turned,” she testified, “and thought I would go back on to the sidewalk, and the team had gotten so it was directly back of me and was prancing. ... It was advancing perhaps a little.” When she started across the street Mrs. Wood was west of the curve and opposite the straight part of the track on Ninth Street. The front end of the car passed without striking her. When she was struck the lack part of the car hit her, and she was opposite the curved portion of the track. When the car approached she went east. She said: “The wagon was about stopped when I first saw the street-car, with the horses just prancing, if not stopped, moving very slowly. The horses were nearly to me when I first saw the car. I was headed north. I hadn’t turned at that time-to walk towards the curve. The position of the wagon was back of me; south of me. I was going north. The horses were a little east and a little south of my position when I first saw the car. The team I guess was three or four feet away from me. When I first saw the ear, about two feet; I

. . . I don’t know whether that wagon stopped or went right along. . . . The car didn’t hit the wagon at all.”

Officer Bach, the policeman in charge of the traffic at that place testified: “I blew one blast of the whistle for the traffic to go east and west. That gives the West Ninth Street ear the right of way through there and there was a gravel team going there with a pair of mules, and the ear came down and the front end threw the mules over one side and they started up that side and I looked around just in time to see this woman step in between them, when the back end come around she got caught in there; she couldn’t get out. The horses kept going and the car was going so she didn’t have any chance to get out, and I saw her roll around and fall down on the ground.” He also said: “When I saw the plaintiff she was standing on track No. B, as marked on the diagram, the track that the cars going east on Ninth and north on Spring Street run. The next minute I saw her step in between the wagon and the car facing me, and the moment she stepped in between them I started right there because I saw that she was going to be hit. ’ ’

The motorman testified that upon receiving the proper signal he started the car around the curve. A wagon coming from East Ninth Street across Spring Street and about to enter West Ninth Street got within about eight feet of him as he was making the curve, and then turned out to the left. When the front end of the car rounded the curve the motorman saw Mrs. Wood on the crossing. She was on the south track and the fender of the car passed about four feet from her. He was making the curve slowly (at the rate of about three or four miles an hour) but the car was moving faster than the wagon. Just as the car turned the curve he received

Appellant’s counsel contend that the motorman was negligent in that, seeing the plaintiff on the curve and the prancing mules nearby he did not forsee an accident and stop his car instantly. The trouble with this contention is that he did not see her on the curve. She and he both testified that when the front end of the car passed her, she was at the crossing opposite the straight track. The motorman testified that the team turned off to the left after coming near to the front end of the car at the beginning of the turn into Ninth Street and it does not appear that he saw the team or the wagon afterward. The plaintiff, the conductor, and indeed all of the witnesses agree that when plaintiff was struck she was between the car and either the mules or the wagon. As the car was forty-two feet long and the team and wagon together less than half that length, obviously the motorman could not, without leaving his post, observe the mules nor the peril of the plaintiff just before the accident, nor could he see that Mrs. Wood had moved from her position opposite the straight tracks and had gone to a place near the curve where the rear end of the car in rounding the curve would strike her. While it is true that courts will not hold persons suddenly placed in peril to a nice selection of a place of safety, nor blame them for lack of judgment under the stress of excitement and fear, nevertheless we cannot say that the jurors were not justified in believing that plaintiff was guilty of contributory negligence in running toward the prancing mules and the wagon which was almost at rest, and placing herself between the swinging car on the curve, and the team or the wagon, instead of seeking safety in the opposite direction or by standing still. It nowhere appears that the motorman ever was in a position to observe that Mrs. Wood was in peril from the prancing animals. It was not the duty of the motorman to keep watch of pedestrians after the forward end of the car had passed them safely. In a case similar to this the supreme court of Kentucky said: “This court has, in a long line of eases, held, that it is the duty of those in charge of a street-car to keep a lookout so as to avoid injuring those who may be crossing or upon the street in front of the moving car. But this rule has never been so extended as, to require the employees in charge

The criticisms of the instructions are without substantial merit. An attack is made upon an instruction by which the jury was told in plain and direct language that the burden was on the plaintiff to prove the alleged negligence by a preponderance of the evidence. It was almost a verbatim copy of an instruction approved in Patterson v. San Francisco etc. Ry. Co., 147 Cal. 182 , [ 81 Pac. 531 ]. It is said that the instruction was misleading because the jury might infer from it

The jury was told that where a street railway car is being operated with ordinary care, and the front end of it passes a pedestrian on the street, the motonnan is not bound to assume that another vehicle to the rear of said car will be so carelessly driven as to crowd the pedestrian into the rear or any portion of said car. This instruction does not improperly assume that the wagon was behind the car if we interpret the expression “to the rear” as “toward the rear.” The language is susceptible of such interpretation, and as all of the evidence showed that the wagon was toward the rear of the street-car at the time of the accident, the jury doubtless so understood it.

It was not error to instruct the jurors that if they found that the front end of the car passed plaintiff in safety, and that afterward she moved, and “either walked so close to the car that it struck her, or else that a team to the rear both of the plaintiff and of the car was driven in such a manner as to compel the plaintiff to walk in close to the track and hem her in between the team and the rear of the car, and she was struck as a result thereof,” then, and in that event, plaintiff could not recover. This was in consonance with the rule declared in the Hamlin case.

One of the instructions, the giving of which is specified as error by plaintiff, was as follows:

‘ ‘ If from the evidence in this ease you find that the plaintiff started to cross Ninth Street, and that the front end of defendant’s said car passed the said plaintiff, and that at the time it passed the said plaintiff the mule team was to the east of said plaintiff, and to the east of the motorman and that

the said motorman had no reason to apprehend any danger to said plaintiff, and you thereafter find that the said rear end of the said car struck plaintiff, either by her voluntarily walking so close as to be in danger of being struck by the same, or by the mule team being carelessly driven so as to compel her to walk towards the ear, then I charge you that the plaintiff cannot recover herein and your verdict must be for the defendant.” Counsel say that the words, “that said motorman had no reason to apprehend any danger to plaintiff,” left to the judgment of the motorman, and not to the jury, a decision whether he apprehended danger or not. The instruction may not be properly so interpreted. The whole instruction has reference to the belief of the jurors and not that of the motorman. It simply means that if, from what the motorman knew and saw under the circumstances assumed by the instruction, he had no reason to apprehend danger to the plaintiff, he could not be held responsible for her injuries. Of course, the decision regarding what he actually knew and saw was for the jurors upon full consideration of the evidence, and this prerogative was not taken from them by the instruction.

Defendant’s proposed instruction number eleven given by the court was as follows:

“If from the evidence in this case you find that as the front end of the defendant’s car reached a point opposite where plaintiff was standing in the street, the said plaintiff was in a position of safety, and that she either remained in said position or stepped to the south and alloxved the front end of the said car to pass her, and if you further find that at that time a mule team was behind the said-plaintiff, and behind the said motorman in charge of said car, and that plaintiff then turned and walked between the wagon and the end of the car towards the curve of the track and was struck as a result thereof, then the court charges you that the plaintiff cannot recover herein and your verdict must be for the defendant.” Appellant’s counsel say that it was absurd to tell the jury that if plaintiff “was in a position of safety and remained in said position,” and was struck by the car she could not recover. But the instruction has no such meaning or effect. The words, ‘ ‘ she either remained in said position or stepped to the south, ’ ’ clearly refer to the moment when she ‘ ‘ allowed the front end of the car to pass her.”

But there would be little profit in following further in detail appellant’s many criticisms regarding the instructions. We have examined the court’s charge as a whole, and find that the jury was fairly and correctly instructed regarding the law applicable to the evidence.

The police officer Bach, who described the approach of the wagon drawn by mules, and the attempt to drive the animals into Ninth Street just as the car was turning into that thoroughfare said: “I thought they [meaning the mules and •wagon] should have had the right of way. ’ ’ The court struck - out this testimony and properly. It was not shown that the failure to give the team the right of way had anything to do with the accident. Therefore the testimony was entirely immaterial.

It is argued that, “so gross was the neglect of the motorman in failing to stop his car when he saw the plaintiff in a position of extreme danger . . . contributory negligence cannot be imputed to the plaintiff, even though she walked toward the rear end of the car in an effort to escape, and thereby came in contact with the car when it swung around the corner.” Waniorek v. United Railroads, 17 Cal. App. 121 , [ 118 Pac. 947 ], is cited in support of the argument.

In the first place, it was not shown, as we have seen, that the motorman saw Mrs. Wood in a position of great peril. In the second place, contributory negligence may be available as a defense to a claim founded upon gross negligence (Sego v. Southern Pacific Co., 137 Cal. 407 , [ 70 Pac. 279 ]; Tucker v.

The order denying appellant’s motion for a new trial is affirmed.

Henshaw, J., and Lorigan, J., concurred.