Hunt v. Pacific Electric Railway Co.

STEPHENS (Jess E.), J. pro tem.

Action by the mother and sister of Robert S. Hunt to recover damages by reason of the death of the latter, which plaintiffs allege was caused by defendants in the operation of a motor coach. The answer denies negligence and sets up contributory negligence as an affirmative defense. The jury returned a verdict in favor of plaintiffs and assessed the damages at $20,000.00.

Defendants thereafter made a motion for judgment notwithstanding the verdict, and this motion was denied. Defendants then moved for a new trial, and in their notice of motion specified all of the statutory grounds as set forth in section 657 of the Code of Civil Procedure. This motion was granted, and in its order the court adjudged “that the motion of the defendants . . . for a new trial in the above entitled action be and the same is hereby granted, and the court further specifies that one of the grounds upon which said motion is so granted is the insufficiency of the evidence to sustain the verdict heretofore rendered in said action.”

Decedent Robert S. Hunt was a passenger on a bus belonging to defendants, and alighted therefrom onto the sidewalk at a regular bus stop a short distance from a street intersection. The driver testified that he then started the bus and moved up to the pedestrian lane and, upon the green signal light appearing, continued and was in process of making a right-hand turn into the intersecting street when in his mirror he saw decedent lying in the street. Until then he did not know there had been an accident. Only two other witnesses testified as to how the accident happened. A newsboy, called by plaintiffs, testified that he was on the corner across the street; that he saw the front end of the bus strike decedent and knock him down and that thereafter his view was obstructed by other traffic. A motorist called by defendants testified that he was driving in the rear of the bus but in the adjoining lane; that he saw decedent walking along the side

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walk after alighting from the bus; that he appeared unsteady-on his feet, and just as the bus started up he slipped and fell under it, the rear right wheel passing over him. Two police officers called by defendants testified that they talked to Mr. Hunt at the receiving hospital, that his breath was alcoholic and that they found a bottle of whiskey, partly consumed, in his pocket. The hospital surgeon also testified that the victim’s breath was heavy with alcohol.