Dougherty v. Union Traction Co.

The plaintiffs sued the defendant, a corporation, which maintains and operates an electric railway in the city of Santa Cruz, for damages in the sum of fifteen thousand dollars for personal injuries inflicted upon the plaintiff, Catherine, through the alleged negligence of the defendant.

The cause was tried by jury, who returned a verdict for the defendant, and the plaintiffs prosecute this appeal from the order denying them a new trial.

The answer, among other things, sets up contributory negligence on the part of the plaintiff, Catherine, and avers that but for negligence on her part she would not have met with the accident and received the injuries sustained by her.

The points urged for a reversal of the order are that the evidence discloses negligence by the defendant and no negligence by said Catherine, that the court erred in its rulings respecting the evidence, that the trial judge prejudiced the rights of the plaintiffs by certain remarks alleged to have been made by him in the presence of the jury, and that error was committed in the matter of the giving and refusing to give certain instructions.

The accident in which Mrs. Dougherty received the injuries complained of occurred on the twelfth day of May, 1909. Her version of how the accident happened is as follows: “I remember the journey on the street-cars in this city on May 12th, 1909. I took the car at the corner of Morrissey and Soquel avenues, transferred to the Mission Street car, and gave my transfer; when we got to the Bedell, I turned to motion the conductor to stop; he had gone through the car—at that moment he started through the car so I could not attract his attention, out on the front platform. The car slowed up. I supposed it was going to stop and stood up and took one step and the car jerked and threw me on the ground. I could not attract the conductor’s attention, as I was on the back of the car, on the west side as the car was going southwesterly on Mission Street. I was seated on the outside of the car, and the seats are lengthwise on the car. If there was a person

It appears that at about the point where Mrs. Dougherty was thrown to the ground the motorman slackened the speed of the ear to allow two passengers—one Peakes, and one Bib-bins—who were sitting on the outside at the front part of the ear—to alight. Peakes testified that it had always been his practice, when returning to his home on the street-cars, to leave the car, upon reaching his residence, while it was still in motion, the motorman always reducing the speed of the car to enable him to alight. On the occasion of the accident he left the car under those circumstances.

The conductor, Lang, testified that the car made a stop at Walnut Avenue, where a passenger boarded the ear. Otis Street, on which the accident happened, was the next street to be reached after leaving Walnut Avenue. The passenger just referred to stepped and stood on the front platform and, immediately after the car started, the conductor went forward for the purpose of collecting the fare from said passenger. Lang proceeded: “I just went outside the front door, took his fare and turned around to go back in the ear; saw Mr. Peakes on the front end of the ear. Of course, I expected Mr. Davis, the motorman, to slow down and let him off; then I looked around; there was nobody to board the ear. I was just inside the door; he then called for a signal that all was clear with two taps on the gong. I looked back through the car and saw that everything was all right, which I could see from the position I was in; all was clear and I gave him the signal,' two bells, the signal that all was right; then I walked back to the middle of the car and I saw Mrs. Dougherty, this lady, I did not know her at the time, stepping down on the steps. I hurried toward her and at the same time gave a bell to the

The witness, McCormack, an employee of the defendant and connected with its operating department for a number of years, said that the cars which were operated by the company at the time of the accident were equipped with a rope drum brake. “Air brakes and rope brakes,” he continued, “are the two brakes generally used on the cars, but the car upon which the accident happened was equipped with a rope brake. The rope is operated around a drum. It is so constructed that, in stopping a car, it must stop gradually, and in starting up it will start gradually. It is impossible to start a car with a jerk when equipped with a rope brake. It is so constructed as to wrap around the drum and the weight of the rope on the drum makes it impossible to release the brakes instantly. While the air brakes can be released instantly and, of course, the car can start with a jerk, it is quite different with a rope brake.” McCormack further testified that on certain parts of

A Mrs. Linstedt was sitting between Mrs. Dougherty and the main body of the car, and her testimony shows that it was not possible for the latter to have passed in front of Mrs. Linstedt without getting down on the steps. Mrs. Linstedt did not arise from her seat to let Mrs. Dougherty pass. She testified that she was not requested by Mrs. Dougherty to arise and that had such a request been made she would have certainly done so.

The question whether the car made a sudden lurch or jerk after its speed had been slackened to let two passengers swing to the ground while it was still in motion and which sudden lurch, it is claimed, caused the precipitation of Mrs. Dougherty to the ground from the step to which she had descended and upon which she was standing, was entirely one for the jury’s determination. And upon that question there is a distinct conflict in the evidence, and the verdict must, therefore, be construed as a finding by the jury that the car was caused to make no such sudden movement. But even if it were true that the ear did make a sudden lurch at the time and that by reason thereof Mrs. Dougherty was thrown to the ground, still, according to her own testimony, she herself was wholly to blame for the accident. She did not notify or signal the conductor that she desired to alight, but upon her own volition arose and placed herself in a position which, even under ordinary circumstances, was one which would be attended by more or less peril. The peril of her situation was increased in some measure by the fact that she was carrying and holding in one hand a basket, whereby she was necessarily handicapped to some extent in moving from the car to the step and, after reaching the step, in securing herself against falling. She knew that the conductor was at the opposite end of the car at the time, and of course knew that he could not then have known that she desired to leave the car.

No fault can be found with the eases, cited by the plaintiffs, in which it is held that the fact that a passenger arises from his seat, preparatory to leaving the car, while it is still in motion, raises no presumption of negligence on his part, or in other words, is not negligence per se. (See Capital Traction Co. v. Brown, 25 App. D. C. 473 , [10 Ann. Cas. 813, 12 L. R. A. (N. S.) 831 ]; Scott v. Bergen County Traction Co., 63 N. J. L. 407 , [ 43 Atl. 1060 ]; Alton R. Gas & Elec. Co. v. Webb, 219 Ill. 563 , [ 76 N. E. 687 ].) There is obviously nothing in the mere act of a passenger arising from his seat in a street or any other kind of a car while it is in motion which of itself constitutes negligence, but it will not be doubted, and the eases referred to do not otherwise hold, that, when a passenger arises from his seat in a moving car for any purpose, he must exercise a reasonable or proper degree of care to protect himself from falling off the car, or, if he is inside, from failing against any object properly in the car, otherwise any injuries he may thus sustain will legally be imputed directly to his own negligence. In this case, as has been shown, the injured plaintiff did more than simply to arise from where she had been sitting—she, obstructed in the free use of both hands as a protection against possible accident by engaging one in the carrying of a basket, descended to that part of the platform where the conductor usually stands, and thus remained until thrown to the street.

Under the view we take of the evidence, as indicated by the foregoing, the defendant having been in no respect guilty of negligence and the damage sustained by Mrs. Dougherty directly the result of her own, the court below should have taken the case from the jury. It follows, therefore, that any errors committed by the court in the matter of the instructions or in its rulings or in the alleged prejudicial remarks of the judge in the presence of the jury are without prejudice. It may, however, be remarked that the court’s charge, though it became, by reason of the fact that the evidence disclosed negligence in the injured plaintiff and none in the defendant, but little more than a mere abstract statement of the law covering the various elements entering into such a case,

It may further be remarked that the court made no error in its rulings upon the evidence which was prejudicial to the plaintiffs, and, as to the alleged remarks of the court in the presence and hearing of the jury, it is to be observed that the affidavits filed and pressed by the plaintiffs on their motion for a new trial setting forth the alleged remarks and the charge that they were made within the hearing of the jury were contradicted by affidavits of ten of the jurors, who deposed that they heard no such remarks as were thus imputed to the judge, and by the affidavit of the latter, who therein denied that the remarks referred to were made in the presence or within the hearing of the jury. It results that, if the point were important here, the decision of the trial judge upon the issue thus made would, under the conflict so disclosed, be conclusive upon this court.

The order from which this appeal is prosecuted is affirmed.

Chipman, P. J. and Burnett, J., concurred.