Wright v. Yosemite Transportation Co.

The plaintiffs are husband and wife, and this action was by them instituted for the recovery of damages, alleged to have been sustained by the plaintiff, Corinne K. Wright, from personal injuries which are charged to have been caused by the negligence of the defendant.

The jury, by whom the action was tried, found for the defendant, and thereupon the plaintiff moved for a new trial on the usual statutory grounds, among them that the verdict was not justified by the evidence, and the motion was allowed.

The general facts are well and briefly stated in the brief of counsel for the defendant as follows: “On July 10, 1910, Corinne K. Wright became a passenger upon a stage of the defendant company which was driven from the Hotel Sentinel, in the Yosemite Valley, to El Portal. Corinne K. Wright had paid for her ticket and the defendant was a common carrier. While the stage, which was drawn by four horses, was proceeding from the Sentinel Hotel along the national highway toward the western boundary of the national reservation near El Portal an accident occurred which resulted in both the horses and stage going over a steep embankment, and falling about fifty feet below the level of the traveled highway. Just before the stage went over the embankment Corinne K. Wright jumped, landing on the bed of the highway in a seated position, thereby bending her coccyx and receiving certain other injuries. . . . Upon the trial of the case the plaintiff showed that she was a passenger traveling upon the conveyance of a common carrier; that an accident occurred and that thereby she was injured.”

Mrs. Wright testified that at a point about six or eight hundred feet from where the accident occurred several Indians, on horseback, and traveling in an opposite direction from that in which the stage was going, were approaching the coach and that, on seeing the Indians, the horses became very nervous and frightened. The driver ordered the Indians to pass on and to keep on their side of the road. After the Indians had passed the stage, she said, the horses seemed to “quiet down” and apparently remained so until the stage reached the point at which it went off the grade, when (she continued), “my attention was first called directly when the horses paused and the wheelers snorted and reared back, and in front I saw dust; but I did not distinguish what the leaders were doing. I took it all in in a flash, and Sensed rather than looked and saw Miss Abbott (one of the passengers on the stage at the time) jump out on the river side, and just the next instant the driver rose in his scat and he said ‘ Jump ! ’ I saw him trembling and agitated. I saw the driver rise up in his seat. I rose at the same instant that he said jump, and I jumped.” She further testified that “at the place of the accident,- the road was comparatively straight and slightly

Miss Abbott, another of the passengers, testified: “Just before the stage arrived at the point of the accident, where the turn is on the road, I observed some Indians riding horseback. There were an old squaw and a boy. I noticed and know that the horses were much frightened at the time. Just prior to the time of the accident I saw the left horse floundering. He stumbled and floundered in the road. . . . Just before the floundering of the horse I was looking ahead and saw no hole or break in the road. The horse floundered just a short time before I alighted from the stage. The driver said to jump. I jumped out on the side next to the river.”

Miss Lang, testifying for the plaintiff, said: “I sat in the middle and I could not see the horses very well. The first thing I noticed at the time the accident occurred, the stage, instead of going forward, seemed to go slow and turn directly almost at right angles. I jumped as soon as I could.”

The evidence tends to show that the plaintiff sustained serious injuries to the spine and that the same is of a permanent nature and has incapacitated her to a considerable extent from the pursuit of her professional labors—that of a teacher of art and music in a school with which she was so connected.

Practically upon the foregoing testimony the plaintiffs rested their case.

One of the witnesses for the defendant—a passenger on the stage at the time—stated that he was riding on the front seat with another passenger and the driver; that the horses displayed no evidence of fright when the Indians were met; that the driver stopped the stage to permit the Indians to pass; that thereupon the stage proceeded and the horses, appearing to be in no degree nervous or frightened, started into “a little bit of a trot; well, really, a fast walk; a very slow

The witness, Owens, superintendent of the defendant, for the defense, testified that he visited the scene of the accident the morning following the day it happened, and made certain measurements. He said that, “at the western end of the cave-in the width of the road, from the inner bank to the extreme edge of the bank, is fifteen feet and six inches; and on the east end of the cave-in the width of the road from the extreme edge of the bank to the inner bank is fifteen feet and four inches. From the measurements I made, the road at the point of the accident and before the cave-in ever happened was over fifteen feet wide. My testimony will be that the road was at least fifteen feet and four inches wide all along at that point. To get to the entire edge of the cave-in, a horse would have to move or step or shy or be shoved or something out of the track four or five feet.”

Owens also testified that he bought the two horses which worked in the lead at the time of the accident in the month of May, 1910 (the accident, as seen, occurred in the month of July, 1910), and that, prior to being used as stage horses,

“The rule is well settled that a motion for a new trial on the ground of the insufficiency of the evidence to justify the verdict, or other decision, is addressed to the sound legal discretion of the court, and that an order granting a new trial on this ground will not be reversed on appeal, unless it appears that there was a manifest abuse of such discretion.” (Bledsoe v. Decrow, 132 Cal. 312 , 313, 314, [ 64 Pac. 397 ] ; Bjorman v. Fort Bragg Redwood Co., 92 Cal. 501 , [ 28 Pac. 591 ]; Ball v. American Trans. Co., 21 Cal. App. 438 , [ 132 Pac. 82 ] ; Eidinger v. Sigwart, 13 Cal. App. 677 , [ 110 Pac. 521 ] ; Baldwin v. Napa etc. Wine Co., 1 Cal. App. 216 , [ 81 Pac. 1037 ]; Central Trust Co. v. Stoddard, 4 Cal. App. 648 , [ 88 Pac. 606 ].)

From the rule above stated it is manifest that a reversal of an order granting a new trial cannot be justified unless it clearly appears to the reviewing court that the trial court, in making such order, abused its discretion.

While the evidence before us is not as definite and clear as it might be upon the question whether the injuries received by Mrs. Wright were or were not the direct result of the negligence of the defendant, we cannot say that the court abused its discretion in awarding the plaintiffs a new trial.

It may be that the trial court was of the opinion, from the testimony, that the horses employed by the defendant in drawing the stage coach at the time of the accident, although previously experienced as farm horses, were so unaccustomed and undisciplined to stage work over mountain highways as to make them difficult to handle, even by an experienced driver, when for any reason they might become frightened and nervous from some object with which they were not familiar. Again, the court might have believed, from a review of the testimony, that the driver needlessly and carelessly drove too near the edge of the highway on the canon or river side of the road and thereby struck the soft dirt usually to be found on the outer edge of a road on a mountain grade. There is, as we have shown, testimony to support either of these theories. As to the latter theory, it is to be observed that some of the witnesses for the plaintiffs testified that the road was practically on a straight line for a short distance before the

Thus we have suggested two several theories reasonably deducible from the evidence and upon either of which the injuries sustained by the plaintiff might reasonably be imputed to the negligence of the defendant, and, while it is not within the province of this court to declare, even if it were possible for it to do so, that, upon a retrial of the case, either theory may or can be sustained by a preponderance of the evidence, it is proper to suggest them for the purpose of showing that, as we have before declared, it is impossible for this court to decide that the trial court was guilty of an abuse of the discretion with which it is invested in such instances when it granted the motion of the plaintiffs for a new trial.

It may be well enough to explain that another action to recover damages for the same injury received by Corinne K. Wright was brought by her husband and coplaintiff here against the defendant at the time the present action was instituted. It appears from the judge’s certificate to the bill of exceptions prepared and filed in this action that this case and the case in which the husband was the sole plaintiff were consolidated and tried together before the same jury, and that in the last mentioned action the jury returned a verdict in favor of the plaintiff, W.

As before declared, we cannot justly hold that the order was not legally warranted upon the ground that the verdict was not justified by the evidence, and the order appealed from is, therefore, affirmed.

Chipman, P. J., and Ellison, J., pro tem., concurred.