Meyer v. City and County of San Francisco

California Court of Appeal Oct 7, 1935 No. Civ. 9541Published

Before: Sturtevant

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Holding. The court held that the defendant municipality was acting in a governmental capacity and that the plaintiff failed to establish the necessary elements of liability under the applicable 1923 statute. Consequently, the defendant's motion for judgment notwithstanding the verdict should have been granted.

Issues

Whether the defendant was acting in a governmental capacity while operating the miniature train.
Whether the plaintiff established the necessary elements of liability under the 1923 statute.
Whether subsequent alterations to the train constituted evidence of an admission of negligence.

Disposition. reversed

Quotations verified verbatim against the opinion

“If, in the operation of the miniature railway, the defendant was acting in a governmental capacity, in the absence of a statute to the contrary the defendant was not liable.”

“No one of those elements was proved in the instant case.”

“The defendant’s motion for judgment notwithstanding the verdict should have been granted.”

STURTEVANT, J.

On the twenty-third day of June, 1931, the plaintiff, a minor thirteen years of age, was riding on a miniature train which was being operated by the defendant in the “Fleishhacker Playground”, one of the public parks of San Francisco. He fell off one of the cars and was injured. For the injuries so suffered he brought this action and it was tried by the court sitting with a jury. When the plaintiff rested the defendant made a motion for a nonsuit, its motion was denied and it proceeded to introduce its evidence. After all of the evidence had been introduced the defendant made a motion for a directed verdict and that motion was denied. Later counsel made their arguments, the court instructed the jury, and the cause was submitted. The jury returned a verdict in favor of the plaintiff. Before the verdict was entered counsel for defendant made a motion for judgment notwithstanding the verdict and at the same time- asked that the defendant be allowed to move for a new trial if its

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motion for judgment be denied. That motion was denied and, from the order denying it, the defendant has appealed.

The plaintiff did not introduce evidence showing the train or any part thereof was “dangerous or defective”. The cars did not, at the time of the accident, have side gates. The evidence showed, however, that the 'entire train was at that time standard construction. It had been operated eight years without an accident. Subsequent to the accident wire panels were inserted on the right-hand side between the seats so that the passengers were compelled to board the train from the left-hand side instead of boarding from both sides. If, in the operation of the miniature railway, the defendant was acting in a governmental capacity, in the absence of a statute to the contrary the defendant was not liable. (Kellar v.

City of Los Angeles,

179 Cal. 605 [178 Pac. 505].) That, under the facts recited above, the defendant was acting in a governmental capacity is a proposition that in this state is not open to debate. (Kellar v.

City of Los Angeles, supra; Crone

City of El Cajon,

Meyer v. City and County of San Francisco

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STURTEVANT, J.

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