193 P. 130 | Cal. | 1920
This is an appeal by the defendant, Los Angeles Railway Corporation, a corporation, from a judgment in favor of the plaintiff, M.L. Wasserman, in the sum of $350, in an action to recover damages for personal injuries alleged to have been sustained as the result of an attempt by defendant's employees forcibly to eject plaintiff from one of defendant's cars.
There is practically no dispute as to the facts. On October 6, 1915, respondent boarded one of defendant's cars bound north on Grand Avenue, in the city of Los Angeles. He paid his fare and requested and received a transfer to the East First Street line. According to his testimony, he was without his eyeglasses and therefore unable to read the transfer, so that he asked the conductor where he should change cars, to which the conductor answered, "Transfer at Seventh and Broadway." The transfer point as printed on the slip was First and Spring. Respondent descended from the Grand Avenue car at Seventh and Broadway and there boarded a car of the East First Street line. When his fare was demanded he presented the transfer, but the conductor told him it did not entitle him to ride from Seventh and Broadway, refused to accept it, and demanded that respondent either pay a cash fare or leave the car. Respondent refused to comply, and explained that he had been told by the first conductor the transfer was good at Seventh and Broadway, that he did not have any money with which to pay a cash fare, and that he was hurrying "to go to work on a job." The conductor reiterated his refusal to accept the transfer and his demand that respondent pay a cash fare or get off the car, and, upon the latter's continued refusal to do either, attempted to eject him. Respondent resisted, the motorman was called, and together he and the conductor seized respondent. A struggle ensued, in the course of which respondent suffered the injuries complained *205 of. Finally the conductor accepted the payment of a cash fare for respondent from one of the other passengers, and respondent was allowed to remain on the car. The cause was tried before the court without a jury. The court made findings of fact and conclusions of law and, as already stated, rendered judgment for the respondent in the sum of $350.
1. Appellant concedes that respondent "was negligently misdirected by the conductor of the Grand Avenue car," but claims that "a passenger . . . with a ticket which affirmatively shows he has no right to transportation cannot insist on the conductor . . . accepting his explanation against the face of the ticket," and that when respondent refused either to pay a cash fare or voluntarily to leave the car, the employees were justified in using the force necessary to eject him. This contention must be sustained. Section
In the case at bar, appellant offered in evidence "Bulletin No. 357, Notice to Conductors," which set forth certain of the regulations governing the acceptance of transfers; among these regulations was the rule under which the second conductor acted in refusing to accept respondent's transfer at Seventh and Broadway. An objection to the admission in evidence of this bulletin was sustained, but it was marked for identification, "Defendant's Exhibit 'A' " and is included in the record on appeal. Furthermore, W.G. Miller, the conductor who refused to accept respondent's transfer, and a witness for appellant, testified with reference to said transfer: "I told him I could not accept it; it was contrary to our rules to accept it only at First and Spring. . . . I *206 told him at the time I handed it back to him that the transfer was only good where it was punched, First and Spring."
[2] Was this a reasonable regulation? We think it was. As was said in the note to Shortsleeves v. Capital Traction Co.,
8 L.R.A. (N.S.) 287, "the right of a street railway company to designate the place of transfer of passengers from one car to another in making a continuous trip for one fare clearly falls within the power which common carriers possess to make reasonable rules and regulations for the conduct of their business. Such a regulation is frequently necessary to prevent crowding at transfer points and to insure honesty in the use of transfers." (See, also, Ex parte Lorenzen,
Several authorities are cited by respondent in support of his contention that where a passenger is ejected from a car on the ground that a tendered transfer erroneously issued by another conductor is defective the carrier is liable for the ejection. None of these authorities is applicable here. InSloane v. Southern Cal. Ry. Co.,
Clare v. Northwestern R. R. Co.,
In Gorman v. Southern Pac. Co.,
2. Since appellant is not liable for the attempt of its employees to eject respondent, if such attempt was not accompanied by unnecessary force, we shall next consider whether there was unnecessary force. The theory upon which the court decided the case is made apparent from its ruling in excluding certain testimony of the witness Miller: "Q. Did you or the motorman use any more force than was necessary? The Court. I think objection would be good to that. It is evidentthey didn't use enough." (Italics ours.) It is plain that the court regarded it as immaterial whether or not the force used by the conductor and motorman was excessive, on the theory that the respondent was entitled to recover if any force was used. And the findings, after setting forth the misdirection by the first conductor, the respondent's boarding of the East First Street car, the refusal of the second conductor to accept the transfer, and respondent's explanation, state that the conductor seized the respondent by the arm, "pulled him from his seat to the rear platform of said car, and then attempted to eject him from said car"; that he was unsuccessful in removing respondent and called the motorman, whereupon "both conductor and said motorman seized plaintiff by the hands and coat collar and with great force pulled, twisted, and jerked plaintiff in the attempt to eject him from said car." It will be noted it is not found that any "unnecessary" or "excessive" force or violence was used. [4] Giving the findings the construction most favorable to respondent, it cannot be said that, either expressly or by implication, they indicate appellant's employees used more force than was reasonably necessary to remove respondent from the car. For it might be necessary to use "great" force in a justifiable attempt to remove respondent. In the absence of a finding of "excessive" or "unnecessary" force, or language of similar import, we must assume that it was because of its misconception of the law on the first point we have discussed, and not because appellant's employees used excessive force in attempting to eject respondent, that the court gave judgment in his favor.
[5] Inasmuch as the cause must be remanded for a new trial, we shall consider the assignment of error in the court's *209 refusal to allow Miller to answer the question already quoted. The testimony should have been admitted. Upon the issue of excessive force it was competent for appellant to controvert the evidence of respondent tending to show that the employees used such force. Respondent defends the ruling on the ground that the question called for a conclusion of the witness. But no objection whatever was interposed to the question by respondent. It is clear that the only ground upon which the proffered testimony was rejected was that appellant's employees did not use "enough" force to remove respondent from the car, and not that the question called for a conclusion of the witness. [6] In this state of the record respondent will not be heard to urge for the first time on appeal that the question was not properly framed.
Judgment reversed.
Shaw, J., Olney, J., Wilbur, J., Sloane, J., Lennon, J., and Angellotti, C. J., concurred.
