259 P. 987 | Cal. Ct. App. | 1927
The plaintiffs had judgment in the above-entitled action, and the defendant appeals.
The record in this case discloses that on or about the twenty-first day of March, 1924, the plaintiff Fannie M. Cox was a passenger on a street-car then owned and operated by the defendant in the city of Sacramento. That at the intersection of Eighth and K Streets, in said city, the car in question came to a stop and the plaintiff prepared to alight, by using the exit and steps at the front end of *597 the car. That the front end of the car was guarded by an iron gate which doubled back upon itself when placed in position for passengers to alight. The gate in question was controlled by hand-lever operated by the motorman. While the gate was folded back and in a position for the plaintiff to alight, the plaintiff moved toward the steps of the car, and as she was doing so was jostled a trifle by another passenger, also proceeding to alight, and when jostled, placed her left hand on the gate above referred to, and in so doing a ring on one of her fingers caught upon the threads of a projecting bolt running through the cross-bar constituting a portion of the material of which the gate was constructed. This bolt protruded through the nut about one-quarter of an inch.
The testimony further shows that on both sides of the exit were stanchions or handholds for the use of passengers, but that the plaintiff was prevented from using the same to steady herself by the presence of other passengers attempting to alight. That while plaintiff's left hand rested against said gate, it was moved by her somewhat and came in contact with the thread end of a projecting bolt on said gate, as above stated. The plaintiff's hand was severely injured and no question is made as to the amount of recovery allowed by the jury.
[1] The appellant, at the close of the trial, moved for a directed verdict. Also for a verdict notwithstanding the judgment. These motions were denied by the trial court, as well as the defendant's motion for a new trial. Appellant's statement that the ring upon the hand of the plaintiff caught upon a bolt-head used to fasten the hand-lever to the gate is slightly inaccurate, as the record shows the ring did not catch upon a bolt-head, but upon the threads projecting through a nut on the nut-end of the bolt. Upon this appeal it is insisted that there is absolutely nothing in the record which can in any way serve as a guide to the jury and authorize the holding that the defendant was guilty of any negligence. It is further contended that the verdict is the result of mere speculation, and that Mrs. Fannie M. Cox suffered an accident that was unavoidable and caused through no fault of the defendant.
In addition to what we have above stated as to how the accident occurred, and also as to what caused the accident, *598 the record shows that during the course of the trial three photographs were introduced by the defendant of gates used by it on its cars to guard the places of entrance and exit. It may be here stated that the defendant maintains and operates upon its line in the city of Sacramento five cars of similar design. That the car in question was numbered 103, and was and is of the same design and pattern as the other four cars then used by the appellant. These photographs, used as exhibits, all show that the bolts used in holding the cross-bar in place and used in the construction of the gate which we have described and mentioned are so placed that when the gate is closed the bolt-heads on the cross-bar are all toward the passengers when entering and also when alighting from the car. The testimony on the part of the defendant is that the photographs introduced by the defendant and used as exhibits, and made a part of the transcript, show the standard equipment of the cars belonging to the appellant. Assuming that this testimony is correct, the standard equipment of the cars belonging to the appellant shows that no accident or injury could have occurred to the plaintiff as that alleged and set forth in plaintiff's complaint in this action if the car from which the plaintiff was then alighting had been so equipped. There seems to be no question but that car number 103, on the twenty-first day of March, 1924, was equipped with a standard gate, as shown by the exhibits, but the manner of constructing the gate, or rather the manner of inserting the bolts in the standard gate, is shown by the testimony to have been exactly the opposite of that claimed by the witnesses for the defendant to be the standard manner of construction. The gate itself was not defective in the sense that it was either weak or inefficient in its operation, or not well calculated to prevent the exit of passengers while the car was in motion or until it had been folded back by the motorman to admit of either the ingress or egress of passengers. The alleged negligence in this case is based upon the fact that in inserting three of the bolts in the cross-bar referred to they had been inserted in such a way as to present the thread-ends thereof to the passenger side of the gate. By the exhibits introduced, the standard form or manner of construction shows six bolts used in the cross-bar, the head-ends of which are all toward the passenger side of the *599 folded gate. The thread-ends or rough ends of the bolt upon which anything would likely be caught are folded away from the passenger side of the gate. In other words, accepting the testimony of appellant's witnesses as to the exhibits being correct photographs of standard equipment, the testimony in the transcript shows that the manner of inserting the bolts in question on car number 103 departed from the standard form. Alleging that the facts which we have set forth do not show negligence, the appellant argues that it was necessary for the plaintiff to go further to prove negligence; that the facts in this case do not take it out of the general rule that negligence must be proven; it being further argued that the doctrine of resipsa loquitur cannot be relied upon to sustain the respondents' cause. Before adverting to the rule of res ipsa loquitur we will examine further as to whether the plaintiff produced any evidence upon which the verdict of the jury can properly be based, and in so doing we will analyze somewhat the authorities cited by the appellant in support of its contention that there is no such testimony.
The first case called to our attention by the appellant in this behalf is that of Stebel v. Connecticut Co.,
In Pendergrast v. Durham Traction Co.,
In Keller v. Hestonville M. F. Passenger R. Co.,
In the case of Delaware, L. W.R. Co. v. Napheys,
In Perkins v. Bay State R.R. Co.,
[2] The language of the text-writer in 4 California Jurisprudence, page 935, section 88, is pertinent: "It is not true, under all circumstances, however, that because a particular accident has not been known to happen before, such accident is not of the character of those casualties which may reasonably be anticipated in the sense that it is a duty to exercise reasonable care in guarding against their occurrence." And further, in the same section: "A carrier is bound to use the best precautions in known practical use to secure the safety of the passengers." The testimony in this case shows that on the car in question the company had not used the best known means to insure the safety of its passengers, but had departed from the standard form of construction followed or used in the gates of other cars.
The questions which we are considering are not, however, exactly open ones in this state. In the case of Sanders v. LosAngeles Ry. Corp.,
"In Steele v. Pacific Electric R.R. Co.,
For the reasons which we have hereinbefore set forth, and especially upon the authority in the case of Sanders v. LosAngeles Ry. Corp., supra, it must be held that the verdict of the jury is sustained.
Judgment affirmed.
Hart, J., and Finch, P.J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on October 26, 1927. *607