Chorn v. Pacific Gas & Electric Co.

The defendant has appealed from an order granting a new trial, after a jury had rendered a verdict in its favor. By the sudden change of traffic signals at the intersection of streets, a pedestrian, who was a ten year old schoolboy, while crossing one of the streets, was caught in a three-foot space between two street-cars which were passing in opposite directions. Both cars stopped, blocking his way. At the command of the motorman to get out of there, the boy ran around the car which stood in front of him and was run down and injured by a passing automobile.

The appellant contends the record shows its freedom from negligence as a matter of law, and that the court therefore abused its discretion in granting the new trial. The respondent asserts the motorman was negligent in failing to observe the boy and stop his ear in time to permit him to

The defendant operates an electric street-ear system in the city of Sacramento. This system includes a single track extending out Twenty-first Street, which runs- in a northerly and southerly direction. It crosses Y Street, where the accident occurred, at right angles. These streets are paved and are sixty feet in width. Double tracks are maintained across Y Street and for considerable distance on either side thereof to enable the cars to pass. These tracks cross Y Street at a distance of six feet apart. This leaves a space of about three feet between the cars as they pass. These streets are busy thoroughfares at this intersection. Traffic is controlled at this intersection by means of red and green electric signals which alternate automatically at short intervals.

Just prior to the accident two street-cars which were approaching Y Street from opposite directions were stopped by the flashing of the red light. The plaintiff and three companions, who were riding in the south-bound car, got out and proceeded to cross Twenty-first Street, traveling along the pedestrians’ pathway. The other boys succeeded in crossing the street. The plaintiff was the last of the quartet to alight from the ear. Just before he reached the center of the street the traffic signals changed, and both street-cars resumed their respective courses. The motorman of the north-bound car was engaged in making change for a passenger who boarded his car at the southerly line of Y Street. He did not notice the predicament of the plaintiff until his car reached a point within a few feet of the boy. Bewildered by the sudden change of signals and the resumption of traffic across Y Street, the boy stopped at the point where the pedestrians ’ pathway crosses the intervening space between the street-car tracks. This was but a three-foot space between passing cars, but it was comparatively safe. When the motorman of the north-bound car observed the boy in the center of the street, he suddenly applied the emergency brake and stopped. About the same time, the out-bound ear also stopped. This left the boy between the two cars. The motorman on the north-bound car opened the window of his car and in a gruff tone of voice ordered

“After I got off the street car I walked around here (indicating on map). Then I looked up, and my conductor, he waved me on, he went like this (indicating). . . . When I was about that far, when I looked down ahead, I saw this signal that said . . . ‘stop’, then as I— Q. (Interposing) ... You state that the motorman waved you across, is that correct? A. Yes sir. . . . Q. Whereabouts were you when you first noticed it (the changed signal), Eugene? A. Right here (indicating). Q. You hadn’t yet gotten on the track ? A. No, sir. ... I took a couple of steps and stepped right up here on the button, I was right by the button then. . . . After I saw it (the north-bound car) coming over,— I stood still there for a minute or two, then when this street car was coming up, then it was pretty close to me, then it was about three feet from me, then this (southbound) car started up about to,—then stopped quick, then that made it about there (indicating on board). . . . After the two cars stopped, and I was in there, I just didn’t know what that man, that conductor said, he either said, he told me to get the hell out of there, or, get the hell across, then I walked across (in front of the northbound car) and as I walked across this Mr. Benetti was coming along (in an automobile) and hit me right there. . . . When I was standing there, he (the motorman) was waving at me like that.”

At the command of the motorman, the plaintiff ran around in front of the north-bound car and attempted to complete his passage across Twenty-first Street. His view of the easterly portion of the street was obscured by the street-car as it stood blocking the pedestrians’ pathway. No warning of the approaching automobile was given by the motorman, or by anyone else. The boy emerged from behind the streetcar just in time to be struck down by an automobile which was passing the street-car on its course northerly along Twenty-first Street. The plaintiff was injured as a result thereof. Suit for damages was brought against the street railway company. The cause was tried before a jury, which rendered a verdict in favor of the defendant. Upon motion of the plaintiff, the court awarded a new trial. From this order the defendant has appealed.

It is conceded by respective parties that the granting of a new trial is addressed to the sound discretion of the trial judge, and that his ruling upon that motion will not be disturbed on appeal except for a clear abuse of discretion. On a motion for new trial, the credibility of witnesses and the weight and sufficiency of the evidence are questions which are to be determined by the trial judge, subject only to the exercise of a sound discretion on his part. (20 Cal. Jur., p. 27, sec. 13; 2 Cal. Jur., p. 905, sec. 533; Petroff v. Nunes, 123 Cal. App. 614 [ 11 Pac. (2d) 648 ].)

Since the record contains substantial evidence which may indicate a lack of ordinary care on the part of the motormen of the passing cars which may reasonably have contributed to the accident, the discretion exercised by the trial court in granting a new trial may not be disturbed on apneal, and the order should, therefore, be affirmed.

It may be conceded as the appellant contends, based upon the authority of Boa v. San Francisco-Oakland Terminal Rys., 182 Cal. 93 [ 187 Pac. 2 ], that its liability as a common carrier of passengers ceased when the plaintiff left the street-car and became a pedestrian attempting to cross the street. But this does not mean that a street-car company is exempt from liability for ordinary negligence resulting in injury to a pedestrian who afterward attempts to cross the street along which the car line extends, merely because the pedestrian may have previously been a passenger on one of defendant’s cars. The obligation to exercise ordinary care in the operation of its street-cars so as to prevent injury to pedestrians is separate and distinct from its common carrier duty toward passengers.

In the present case, while there is a conflict of testimony regarding the affair, substantial evidence exists from which it may be assumed the trial court believed the motormen of both street-cars saw the plaintiff attempting to cross the

The order is affirmed.

Plummer, J., and Pullen, P. J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on December 7, 1933, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 4, 1934.