Olinger v. Pacific Greyhound Lines

MARKS, J.

This is an appeal from an order granting a new trial in an action to recover damages for personal injuries suffered by Annie Olinger, wife of W. E. Olinger, while she was a passenger for hire on a bus operated by defendant, a common carrier. The jury returned a verdict in favor of plaintiffs in the sum of five thousand dollars. The motion for new trial was granted particularly because of two erroneous instructions given to the jury at the request of plaintiffs.

Counsel for plaintiffs tacitly admit error in these instructions but urge they were not prejudicial because the same subject-matter was correctly covered in other instructions so the jury could not have been misled by them. They also urge that assuming that the instructions were erroneous and misleading, the motion for new trial should not have been granted because of the provisions of section 4½ of article VI of the Constitution. They argue that under all the evidence in the record an honest jury could only return a verdict for plaintiffs. They urge that the evidence presents no conflicts and contains nothing that could support any defense.

The erroneous instructions given by the court are as follows: 1 ‘ The plaintiff makes out a

prima facie

case against the carrier when he shows that any injury was proximately caused by some accident, while being so transported by the defendant. Such proof raises a legal presumption of negligence on the part of the carrier as to the management and operation of its bus, and the burden is then thrown upon the defendant to show by a preponderance of the evidence that any injury sustained by plaintiff was without negligence on its part.

[487]

“If you find that the plaintiff was injured while a passenger on the bus of defendant, you are then further instructed that by such fact, it is the duty of the defendant bus company to prove by a preponderance of evidence that it was not negligent in the operation of said bus, either directly or through its agents, or through any appliance or equipment, or through any instrumentality under its control, and it must prove that it was not' negligent in using and exercising therein a care as is required by law and described to you in some other instructions. ’ ’