175 P. 901 | Cal. Ct. App. | 1918
Defendant appeals from a judgment entered in favor of plaintiff and from an order denying its motion for a new trial.
The action was to recover damages alleged to have been suffered by the plaintiff through the negligence of the defendant. Defendant was a common carrier of passengers, and plaintiff was a passenger on one of its electric cars in the city of Los Angeles when she suffered her alleged injuries. The car upon which plaintiff was riding was at a standstill, having stopped to permit the discharge of passengers. Plaintiff was preceded from the car by her husband. As she reached the exit space opposite the steps (there being two of the latter) she had a package in her right hand and took hold of the hand-guard with her left. As she stepped downward upon the steps her skirt was caught on a protruding knob affixed near the floor at the left of the exit, and she was thrown to the street, where she struck upon her back. In her complaint the negligence charged against the defendant was that the knob was negligently placed in its position by the defendant, and so placed as to constitute a dangerous contrivance. The case was tried before the court sitting without a jury, and by the decision of the trial judge the sum of two thousand five hundred dollars was awarded to the plaintiff. On this appeal the defendant makes no contention against the amount of damages awarded or the extent of plaintiff's injuries. The sole contention is that no negligence whatsoever was shown by reason of which the defendant was *224 chargeable for any amount of damages. The knob upon which plaintiff's skirt caught was a small contrivance which served as a bumper to intercept the sliding iron gate which closed the exit of the car. There were two of these bumpers, the one about which complaint is made being located four inches from the floor of the car, and the other near the top of the door, about six feet from the floor. There being no dispute in the evidence as to the location of the bumper, or the manner of construction of the car at the place of exit, we may use for purposes of illustration two drawings attached to appellant's brief which it is agreed are correct:
[EDITORS' NOTE: DRAWING IS ELECTRONICALLY NON-TRANSFERRABLE.]
Drawing No. 1 is a view from the interior of the front platform showing the exit door open; also the bumper near the *225 floor, attached to the door-post. No. 2 gives a view of the steps of the car looking downward immediately over the same.
[EDITORS' NOTE: FIGURE IS ELECTRONICALLY NON-TRANSFERRABLE.]
A duplicate of the contrivance, which is termed a "bumper," was submitted under stipulation in this court by the parties and we have it before us for examination. This bumper consists of an iron plate about two and three-quarters inches long by one and one-half inches wide, with an ell piece which is made to fit on the inside of the door-post. According to the testimony, this ell piece was set into the door-post so that the piece was flush with the post on that side. A round iron projection extends above the plate to a height of about an inch and a half, and into this is set a solid rubber piece, cylindrical in shape, designed to receive the jar of the door when closed. This projection above the plate answers in general description to a section of one and one-half inch pipe closed on one side and holding the rubber on the other, except that on the opposite side to that holding the rubber, and extending halfway up on the projection, is an iron brace, all a part of the casting. The casting is rough in kind and painted. The testimony introduced on behalf of the plaintiff to show the circumstances of the accident went only to the extent of describing the facts as we have first stated them, not presenting any description of the bumper itself or the way it was applied. Defendant, at the conclusion of his testimony, moved for a judgment of nonsuit, which motion was denied. Thereupon *226 defendant introduced as a witness its master mechanic. He testified that it was his business to design all attachments for the cars of his employer and that he had done this for about twelve years. He explained the method of construction of the car platform and bumper, and said: "I consider that one of the most practical buffers that I could possibly adopt for that. I designed that car, and in studying that out, I had to have something to bump against, and the idea of putting it in that position as that was, throwing it out, in order that when they went to get past between the post and the buffer, the buffer was to keep it back far enough, so that you couldn't get your fingers between the sliding gate and the post, and is the reason why the buffer was placed back beyond the face of the post, so as to get room enough, so if anybody getting out of the car, or were getting in the car while the door was in action it couldn't pinch their fingers, and that is the reason why it is constructed in that manner. A further reason for placing the buffer out of the passageway, making the exit from there, was that we couldn't put one at the top and one at the bottom on account of throwing the gates out of square. It was necessary to put it in that position in order to have sufficient strength to support it. This buffer comes up even with the left-hand post as you get out of the car. I have been engaged in the railway business for about thirty-five years. I spent about a year and a half designing these cars before they were actually put in operation. We tried other buffers as experiments, but this buffer proved to be the most satisfactory that we have ever gotten out. This buffer is a modification of the original buffer that was put on." On cross-examination the witness was asked various questions tending to elicit information as to whether the buffer casting could not have been extended all the way back to the front wall of the car (a distance of from twelve to fourteen inches), and he gave his view that it would not be practicable to do so. On further examination he stated that it could be so constructed, although he did not think it would be any better that way, saying: "I don't think it would be impossible for a woman's garment to catch upon it if it were extended back to the end of the car. Her dress is as liable to be caught in underneath because we can't cover the whole distance from the floor of the car to the bumper." Asked whether any shields had ever been placed over the bumpers, he replied, *227 "No, sir." The general claim agent of defendant company testified as follows: "My duty regarding claims and injuries is to investigate all reports received, and to investigate all injuries, and as to how they occur. That has been my position with the defendant for twenty-three years. As claim agent of the railroad I have a report of the number of passengers carried by the cars of the company." He then stated that during the year 1913 (it being alleged that the accident in question occurred on the fourth day of September, 1913), there had been carried on cars having the bumper attachments 88,236,273 passengers. He stated that as claim agent of the defendant he did not during the year 1913 receive any report or claim for injury other than the claim of the plaintiff arising out of an accident caused by the bumper, and further stated: "The claim department watches all equipment on cars. If there is any complaint of anything dangerous, we notify the operating department; and during that time all these millions of people carried, there has never been a question come up about any question on the cars. We have never received any report of any accident other than the one the plaintiff here received from this bumper or buffer." Another witness, the assistant superintendent of the defendant, testified that he regarded the bumper as a safe appliance, but the appellant in its brief suggests that possibly this witness was not sufficiently qualified to give that opinion.
Appellant first argues that the judgment of nonsuit should have been granted because there was no proof made by the plaintiff tending to show that the defendant had in any way been negligent. Appellant, under the facts adduced by the plaintiff, denies the application of the doctrine of res ipsaloquitur. It is true enough that negligence will not be implied from the mere fact of injury, and it is also true that the plaintiff, at the time she rested her case, had furnished the trial court with no information as to the construction of the bumper, its character, or location upon the car. She did, however, show that she was injured through the catching of her skirt upon an appliance affixed to the car by the defendant, and we are inclined to the view that enough was supplied, under the rule adverted to as affecting carriers of passengers, to entitle her to the presumption of negligence until the defendant had excused itself by evidence. In Steele v. PacificElectric Ry. Co.,
For the reasons given, the judgment and order are affirmed.
Conrey, P. J., and Shaw, 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 November 19, 1918.