Lynch v. Pacific Electric Railway Co.

The plaintiff, as administratrix of the estate of her deceased husband, William Edward Lynch, prosecutes this action against the defendant to recover damages on account of the death of her husband, which she alleged was caused by negligence of the defendant employer of said Lynch. The charge is that on the twenty-ninth day of April, 1913, “while the defendant was attempting to' draw a gravel train of cars over its tracks on a steep upgrade,.

At the commencement of the trial, counsel for plaintiff abandoned his claim of negligence on the part of the motorman, and admitted that at the time in question the motorman did throw on the power as quickly as he could, but that before he could put on the power the car slipped back and caught Mr. Lynch between the two cars whereby he was killed. The ease was tried upon the charge that the defendant negligently failed to furnish power to make it sufficiently safe for him to work. The circumstances were as follows: The defendant was operating a line of electric cars from Los Angeles to and through Redondo and to a place called Clifton, a short distance south of Redondo. Its passenger-ears did not run beyond Clifton. At a point a half mile or more beyond Clifton defendant had a gravel-pit, to which it had extended a track on which a motor and cars were operated for the transportation of gravel. This track ran on an upgrade from the gravel-pit toward Clifton. Power was obtained through a trolley wire running over the track down to the gravel-pit, which trolley wire was continuous with the wire used by the passenger-cars running to Clifton, and carried the same supply of power. The result was that sometimes, when cars were actually running on what was called the Clifton section, their consumption of power reduced the supply of power available for the gravel-cars, and there was not always sufficient power to bring the gravel-ears upgrade. A cluster of electric lights on the motor car of the gravel train was utilized by the operatives • of the gravel train to show them whether at any given time there was or was not

The defendant by its answer denied that it had negligently failed to furnish sufficient electricity to pull the train. This was an admission that the amount of power was not entirely sufficient—the admission being coupled with the denial that such failure was negligent. The evidence showed that this insufficiency was known to Lynch who, for that reason, had caused car No. 2 to be detached. Under all of these circumstances it cannot be that defendant was guilty of negligence causing the injury and death of Lynch, unless it can be maintained that it was the defendant.’s duty to furnish a supply of power at all times sufficient to move the train, and that it owed this duty to its employees, notwithstanding that they had full information concerning the actual condition of the power supply. This would be a more extreme rule than is necessary to meet the requirement that the employer shall use reasonable care to provide its employees with safe appliances with which to do their work. We have not been referred to any decisions enforcing such extreme rule.

At the time of the accident to William Edward Lynch there was in force an act, approved April 8, 1911, commonly known as the Roseberry Act. Under section 1 thereof it was provided that in any action to recover damages for death resulting from personal injury sustained within this state by an employee while engaged in the line of his duty or the course of his employment as such, in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer, “the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee. (Stats. 1911, p. 796.) In addition to its denial of any negligence on its part, the defendant pleaded contributory negligence of the deceased. Appellant contends that by reason of the above-

It is true that, as claimed by appellant, usually in actions of this kind the question of negligence of the defendant should be determined by the jury; and that the court may not grant a nonsuit on the evidence introduced by the plaintiff if that evidence tends to establish the fact of negligence. But the court here directed a verdict for the defendant after the entire case had been presented. This being so, the situation is very much the same as where the jury has returned a verdict and the judge has set aside that verdict as not sustained by the evidence. If the trial court has not abused its discretion in making such order, the order will not be reversed. So here, under like circumstances, the court’s order directing a verdict for the defendant should be sustained. The condition of the evidence was such that the judge determined that he would not be justified in allowing the verdict to stand if it deprived the defendant of the defense- of contributory negligence to which it seemed well entitled in this case, or he determined that there was not sufficient proof of negligence on the part of defendant. In acting upon this determination his discretion was properly exercised, upon either or both of the grounds above stated. “To withhold a case from the jury is no greater interference than to set aside their verdict.” (Bohn v. Pacific Electric Ry. Co., 5 Cal. App. 622 , [ 91 Pae. 115 ], and cases there cited.)

The judgment is affirmed.

James, J., and Shaw, J., concurred.