Hyman v. Market Street Railway Co.

PETERS, P. J.

Plaintiff brought this action for injuries alleged to have been received in a collision between a streetcar owned and operated by the defendant Market Street Railway Company, on which she was riding as a passenger, and a Municipal Railway streetcar owned and operated by the defendant City and County of San Francisco. From a judgment in favor of the two defendants, entered upon a jury verdict, plaintiff prosecutes this appeal.

The collision occurred at the intersection of Market, Mc-Allister and Jones Streets in San Francisco at about 7:00 o’clock P. M. on the evening of September 11, 1937. The Market Street Railway car on which plaintiff was riding as a passenger was proceeding into Market Street eastbound, and the Municipal car was proceeding out Market, westbound. The motorman of each car testified that his car was at a complete stop when the other ear ran into it. Passengers on each ear corroborated the story of the motorman of their car. There "was nothing to obstruct the view. Neither car was seriously damaged. The front window of the Municipal car was broken, the front step damaged, and the car dented. The Market Street Railway car had its front fender damaged.

[649]

Plaintiff testified that she was sitting in the rear section of the Market Street Bailway car; that as a result of the impact she was thrown from her seat onto the floor and sustained shock and bruises from which she had not fully recovered at the time of the trial in January, 1939. She was taken to the Emergency Hospital by ambulance, and then to her home. She testified that after the collision she observed she was bleeding, and called for a doctor; that thereafter she does not remember anything until she reached the Emergency Hospital.

The evidence of permanent injury was sharply conflicting. Plaintiff’s doctor testified that she had suffered a fractured vertebra, shock, contusions and bruises that had kept the plaintiff in bed for many months, and finally required hospitalization. Many doctors called by the defendants testified that all plaintiff’s complaints as to permanent injury were due to arthritis and obesity.

Respondents, in support of the judgment, contend that, upon the record, the jury could have concluded that plaintiff was not injured on the streetcar. The conductor of the Market Street Railway car testified that, in his position on the rear of the car, he was looking forward, but observed no one fall to the floor, nor was any complaint made to him, nor did he observe anyone injured. Mrs. Banks, a passenger on the ear, testified that she was sitting in the front section; that several minutes after the collision she walked to the rear of the car; that she neither saw nor heard anyone making any complaint of injury, on or off the car. Respondents contend that under the rule that a fact may be established by negative testimony, the above-summarized testimony sustains the implied finding of the jury that the appellant was not injured in the collision. This contention is unsound. It is not disputed that there was a collision between the two cars at the time appellant claims to have been injured. The records of the Emergency Hospital show that appellant was brought to the hospital in an ambulance from Jones and Market Streets; that the accident in which the appellant was injured was stated in the records to have arisen out of collision of streetcars; that she was brought to the hospital at 7:10 P. M. and released at 7:30 P. M., that the diagnosis was a contusion of the right arm and nose. Furthermore,