Gumpel v. San Diego Elec. Ry.

T his is an appeal from a judgment in plaintiff’s favor and from an order denying the defendant’s motion for a new trial, in an action for damages for personal injuries sustained hy the plaintiff through being thrown frpm a street-car of the defendant while it was rounding a curve at the corner of First and Spruce Streets, in the city of San Diego.

The appellant assails the plaintiff’s amended complaint as not stating a cause of action. The plaintiff in his said complaint, after averring that he was a passenger for hire upon the defendant’s car, goes on to allege that the said car “proceeded in a northerly direction on its said street-car line, and at that certain point on the comer of First and Spruce Streets, while said car was rounding said curve, and while the same was traveling at a rate of speed of twenty miles per hour

The appellant next contends that the evidence is insufficient to justify the verdict, in that it fails to show that the accident was the result of any negligence on the part of defendant company. The plaintiff himself testified in relation to the accident; that he had boarded defendant’s car at the comer, of B and Third Streets at some time after 11 o ’clock on the night of his injury. It had been raining; the .ear was very crowded, persons were standing on the front and rear platforms and on the steps of the car; he gained standing room on the rear platform, and, as some of the passengers got off, was able to step over to the door of the ear but could not get inside because of its crowded condition; he was standing leaning against the door when the car came down the steep hill above the curve going very fast, about twenty miles an hour; he had a package under his right arm and was trying to get hold of the piece that runs down from the roof to the floor; the car made a terrible jerk at the curve and threw him off. The plaintiff also testified that he had been accustomed to ride on this car along this portion of its route and knew that the hill and curve were there. There was other testimony supporting plaintiff, to the effect that the car was going at a more rapid rate of speed than usual as it approached the curve. There was also evidence on the part of the defendant contradicting that of the plaintiff as to the rate of speed of the car and as to a jerk at the curve, which it is not necessary to recite in detail, for it is evident that there was suffi

It is next contended by the appellant that the plaintiff was guilty of contributory negligence as a matter of law, in not taking proper precautions to guard himself from the danger of falling or being thrown from the car as it approached a curve, the existence of which he knew, and at a rate of speed of which he was aware. Appellant cites numerous cases from this and other jurisdictions which it claims supports this position. But upon this point also the most recent and approved decisions of this court are to the effect that under like circumstances to those disclosed in the case at bar the question of the plaintiff’s contributory negligence is one which should properly be submitted to the jury. The most recent utterance of this court upon the subject, citing and sustaining earlier eases, is that of Graff v. United Railroads, supra.

The appellant further urges that the court erred in giving the following instructions:

“In fixing the compensation you take into account, if you find that he, by reason of the negligence of the defendant, had been injured, then you take into account the extent of his injuries, and whatever pain and suffering, either physical or mental, he has undergone by reason of that injury, resulting from the negligence of the defendant, and what pain and suffering he will yet undergo which can be traced and is the result of that injury.

“You also take into account his loss of time, that is, Ms inability to earn money, which has resulted from the injury which he received by the negligence of the defendant, whatever loss of time, loss of ability to earn money, has resulted up to this time, and whatever loss of time or loss of ability to earn money will result in the future, and which can be traced by you to the result of this injury, and due to the negligence of the defendant.”

It is the appellant’s contention that these instructions violate the rule laid down in the case of Melone v. Sierra Ry. Co., 151 Cal. 117 , [ 91 Pac. 522 ], in that they permit the jury to speculate upon the future pain and suffering of the plaintiff, and also as to his loss of time and ability to earn money; and do not confine these elements of damage to that detriment

The appellant finally contends that the court erred in its refusal to give certain instructions requested by the defendant and dealing with particular phases of the evidence in the case. It is not necessary to set forth in detail these instructions nor refer to the argument or authorities cited by the appellant in their support, for the reason that the court, after a careful examination of the whole body of instructions given by the trial court, is of the opinion that they sufficiently cover the points emphasized by the defendant in its suggested instructions, and that, upon the whole, the jury were fully and fairly instructed as to the rules of law by which they were to be governed in arriving at their verdict; and hence that there was no error committed in refusing to give the instructions requested by the defendant.

Judgment and order affirmed.

Sloss. J„ and Shaw, J., concurred.