Renfro v. Fresno City Railway Co.

It is alleged in plaintiff’s complaint that while he was a passenger on a certain ear operated by defendant corporation at the terminus of the railroad “where said car usually stopped for passengers to alight therefrom, and while said car had slowed up for the purpose of permitting passengers to get off from said car, the employees of said defendant who were then and there running said car and had the same under their charge and control, negligently and carelessly caused said car to be suddenly and violently jerked and started and put in rapid motion without allowing plaintiff sufficient» time to alight therefrom; and in consequence of said negligent and careless action of said defendant’s

The attending surgeon testified that the injury was “to the right hip joint, the right thigh or femur, the bone near the hip joint, .... a fracture just inside the capsule of the joint, what we call an intra-capsular fracture.” The injury occurred on February 4, 1904, and on January 12, 1905, when the trial closed, plaintiff was on crutches and the surgeon testified that he “did not think his patient would ever be able to get around and pursue his usual vocation in an active way,” that of a bricklayer and plasterer. Plaintiff testified: “I was a passenger on an electric car. As I got out near the end of the line the car began to slow down, and it was along between 12 and 1, and I was in a hurry .to get home for dinner, and I got ready to get off when it stopped. It slowed down, and was pretty near a stop, and I went to get off, and it gave a sudden jerk as 1 left go with my hand of the rail, the bar where I was holding on, and I had my weight* on one foot and it threw me back on my side. I had my seat on the outside in the rear end of the ear on the right-hand side, that would be the easterly side as I went out. I was standing on the lower step when I was thrown. I had hold of the bar—the iron. There is an iron post goes up outside of the other, the iron on the upright post. I was standing this way [showing], say we were going this way [the evidence is that the car was going north] and I had this hand [the left hand] a hold of the post and this foot [the right foot] was off the step, and this [the left foot] was on the step and just as I let go it jerked and threw me on this hip [the right hip]. My head fell to the south.” He testified that the bottom step was about fifteen inches from the ground; that he was then about fifteen or twenty feet from the end of the track, and that 'the car went “but a little ways because I had to come down a little to get around it.” He testified that he had frequently ridden on the car, and noticed that it stopped “anywhere along there clear from the end clear back as far as

Defendant contends that “the plaintiff shows no such facts as justify the presumption or conclusion of negligence on the part of defendant, or a verdict in favor of plaintiff, and this point presents the controlling considerations to be presented and considered on this appeal.” Again attention is called, in italics, to the fact “that the evidence is entirely void of any statement covering the cause or giving any reason for the sudden jerk mentioned by plaintiff.” It will be observed, however, that plaintiff did testify that the sudden jerking of the ear, under the circumstances narrated, threw him off and was the cause of the injury. Defendant’s position is that plaintiff should have gone further and shown what caused the sudden jerking of the car before a presumption of negligence would arise. The mere happening of injury to a passenger while riding on defendant’s cars, unaccompanied by any other fact, would not, we think, be sufficient to raise a presumption that the injury was attributable to defendant’s negligence. The injury should, in some way, be connected with the operation of the cars by defendant. A passenger might suddenly be overtaken by vertigo while walking through the car, and, in falling, meet

The evidence showed that the sudden jerking of the car was so violent as to compel plaintiff to release his hold of the stanchion and to throw him down with his head to the rear of the car, and with sufficient force to seriously injure him. These facts are to be considered in connection with the other facts testified to in determining whether a presumption of negligence arose. Ordinarily, a passenger injured while riding on a car is not in position to know more than that by some unusual movement of, or happening to, the car he has received injury. What caused the movement or happening he cannot be expected to know, and it is for this reason and for the further reason that the persons operating the car should know the cause and be able to explain it, that the presumption of negligence arises, and that the burden is cast upon the railroad company to explain the cause. The present case fairly illustrates the wisdom and justice of the rule. The proximate cause of plaintiff’s injury was the sudden jerking of the car forward when he had reason to believe that it was about to stop. Beyond this he was in no position to know the cause. If such sudden movements of street-cars, under like circumstances, are necessary or unavoidable, in their operation, we think the rule would cast

It is claimed that “in the case at bar there was nothing which occurred which ordinarily does not happen if those who have the management use proper care. In other words, everything that did happen in this case in the matter of the operation and movement of the ear is such as usually does ' happen and is and must be ordinarily anticipated, and therefore is not. negligence.” Appellant’s claim requires us to hold as matter of law that the thing which happened was nothing more than an ordinary occurrence such as every passenger is presumed to anticipate and guard against. It seems, to us that the “event which took place” would not have happened “according to the ordinary course of- things ... if proper care” had been exercised by the servants of the railroad company. When a ear has reached its terminus, is slowing down and nearly at a stop, as here, it cannot be said as. matter of law that “according to the ordinary course of

The rule was stated in McCurrie v. Southern Pac. Co., 122 Cal. 558 , [ 55 Pac. 324 ]. In that case defendant’s car had come to a stop at a street crossing; the front door of the car had been fastened open and plaintiff had gone to the front platform. The car “gave a violent jerk backward,” and to save him from falling plaintiff caught hold of the door casing and “just then the door swung to and caught” his hand. The trial court granted defendant’s motion for nonsuit. The supreme court said: “The evidence on. behalf of the plain

The presumed negligence of the defendant in the McCurrie case, su,pra, differed in degree only from defendant’s presumed negligence in the present case; in each case it is obvious that the injury resulted from the management of the •instrumentality operated by defendant; in neither cases does the rule of law put upon plaintiff the burden of showing the cause of such management, but does put it upon defendant. Defendant offered no evidence to explain the cause of the sudden start forward which caused the injury. The evidence in defense was a denial that any sudden jerk of the ear occurred or that anything unusual happened, and merely produced a conflict in the evidence. It is not neces

Several instructions given by the court, and others requested by defendant and refused, were noted in the assignments of error. With one exception the questions involved are, as we understand counsel, dependent upon the view taken by appellant upon the rule already fully discussed. As we hold against defendant upon these questions the instructions referred to need not be examined. The exception is the instruction numbered 10, by which the jury was told that “it was the duty of plaintiff to use such reasonable efforts as were in his power to mitigate the consequences of the injury; . . . and in this connection, you will consider the financial ability of plaintiff to employ physicians and all the circumstances connected with their employment and with the compliance with the treatment prescribed by them; and if you find that he used such reasonable efforts as were within his power to employ a physician or physicians of good reputation and standing for the purpose of treating his injuries, and that he complied with and took the treatment prescribed by such physician or physicians, then you are instructed that he is not responsible for any unskillful treatment of him on the part of said physicians; and the fact that a more skillful treatment might have been prescribed by the same or other physicians, or the fact that he did not employ the best medical and surgical skill to be had, can in no way affect his right to recover herein, nor the amount of damages which he is entitled to recover.” The only testimony as to the character of the injury and the treatment prescribed and used came from the attending physician and surgeon whose qualifications were shown and are not disputed to have been equal in all respects to meet the exigencies of the case—both as to diagnosis and treatment of the injury. The criticism of the instruction is directed to that part in which the financial ability of plaintiff to employ physicians is mentioned. If the fact had been that because of poverty or through motives of economy plaintiff

Buckles, J., and McLaughlin, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 29, 1905, and the following opinion was then rendered:

We endeavored in the opinion to make our position free from ambiguity and uncertainty. Defendant urges that we carried the rule of presumptive negligence further than is warranted by any of the decisions of the supreme court of this state, and that our position is opposed to the rule laid down in well-considered cases in other states. That the point in controversy may clearly appear we quote from the petition: “If the facts testified to up to the point of injury are such only as would not, if the injury did not happen, themselves show any negligence or unusual operation, then the happening of the injury does not raise the presumption of such negligence. ’ ’ Quoting certain passages from the opinion, the petition further states: ‘1 The point we make and which we have sufficiently stated is that the other facts must show negligence, but even if the contrary view were correct, the evidence of the nature of plaintiff’s fall would be quite insufficient to raise such presumption.” Again: “It will be observed again, that the evidence of the fall of the plaintiff is by the court made the controlling consideration in determining negligence.” Still further: “In other words, the passenger cannot, by falling down or falling off or sustaining an injury, assist in creating the

Suppose a railroad train is slowing down at a station for the purpose of allowing passengers to alight and has nearly stopped. Suddenly the train jerks forward, and with such force as to throw the passengers, who are moving toward the doors, preparatory to alighting, with violence to the floor of the cars, breaking limbs, dislocating joints, fracturing skulls, and otherwise maiming and injuring them. Our position is that the nature and extent of the injury may be taken into consideration in determining the question of negligence of the carrier in operating the train, and whether the jerking was unusual. If in the operation of railway trains or street-cars their sudden jerking or jolting, when slowing down to stop, has been of such notorious character as to admonish passengers of the danger and would, as matter of common prudence, require them to keep their seats until the cars have come to a stop, we can see how the rule contended for might have some application. But no such thing is true. Passengers from street-cars are urged to alight quickly, and are encouraged to make preparations to do so by approaching exits before the car stops. This is common knowledge. If the rule was that street-car passengers should hold their seats until the car stops, it would take many more cars to perform the service, and such a rule would call for some sort of notice to passengers. But why should not the jury consider the circumstance of the injury itself, its nature and extent ? Why is it not a legitimate fact tending to show whether the jolt or jerk of the car, causing the injury, was unusual or not? Unless it can be maintained (which it cannot) that street-cars, when about to stop, usually, and so generally as to be within the several knowledge of passengers, are so liable to jerk or jolt as to throw occupants to the ground if they prepare to alight, we do not think the rule we have laid down is unreasonable or unjust. In the case of Samuels v. California Street etc. Ry. Co., 124 Cal. 294 ,

Petitioner is not warranted in the statement that “the fall of the plaintiff is by the court made the controlling consideration in determining negligence.” It was clearly shown in the opinion that “the mere happening of the injury to a passenger while riding on defendant’s cars unaccompanied by any other fact would not, we think, be sufficient to raise a presumption that the injury was attributable to defendant’s negligence. The injury should in some way be connected with the operation of the cars by defendant.” It is beyond dispute that the jerking of the car in the present case was the cause of the injury. That much shown, the character of the injury might well tend to show that but for defendant’s negligence it would not have happened.

Rehearing denied.

McLaughlin, J., and Buckles, J., concurred.

A petition 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 29, 1906.