Gurst v. San Diego Transit System

MUSSELL, J.

This appeal involves the propriety of the trial court’s dismissal of a personal injury action pursuant to a motion made by the San Diego Transit System on the ground that plaintiffs had failed for more than two years since the action was filed to bring it to trial. The complaint was filed on June 7, 1949, and the judgment of dismissal for want of prosecution was rendered by the trial court on January 21, 1952. Plaintiffs appeal from the judgment of dismissal on the ground that the trial court abused its discretion in dismissing the action.

It is alleged in the complaint that plaintiff Doretha K. Gurst, while riding as a passenger on a bus operated by defendant San Diego Transit System, on January 29, 1949, sustained injuries by reason of the negligence of the defendants. The answer contains a general denial, allegations of contributory negligence and a further defense that the accident referred to in plaintiffs’ complaint was solely and proximately caused by the negligence, carelessness and violation of law of the driver of another vehicle upon the public highway at said time and place.

The record shows the following proceedings: The complaint was filed on June 7, 1949, and the answer on June 23, 1949. On that day, with leave of court, defendant transit company filed a cross-complaint against Claude L. Holton, the owner of the automobile involved in the collision. On June 30, 1949, plaintiffs filed a demurrer to the answer of defendant transit system. This demurrer was overruled and on August 10, 1949, cross-defendant Holton filed a cross-complaint for damages against defendant transit system and also an answer to the company’s cross-complaint. On August 15, 1949, defendant transit system filed its answer to the Holton cross-complaint and the case was at issue on this date. On March 9, 1950, pursuant to section 1030 of the Code of Civil Pro

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cedure and upon the ground that plaintiffs resided outside of the State of California, defendant transit system filed a notice requiring security for costs. Apparently, on December 10, 1951, plaintiffs deposited the sum of $300 cash as security for costs and a motion of defendant transit system to dismiss the action for failure on the part of plaintiffs to file a cost bond was denied by the trial court. The case was then set for trial on January 21,1952. On January 3,1952, defendant transit system filed a motion to dismiss the action on the grounds that plaintiffs had failed for more than two years since the action was filed to bring it to trial and that the said delay in bringing the matter to trial had resulted in prejudice to the rights and interests of the defendant.