Jaques v. Southern Pacific Co.

NOURSE, P. J.

In an action for damages for personal injuries the plaintiff had a verdict for $35,000 which the trial court reduced to $25,000. The defendant appeals from the judgment as so modified.

The injuries occurred while plaintiff was standing in a painted safety zone near the intersection of Shattuck Avenue and Kittredge Street in the city of Berkeley. On Shattuck Avenue the defendant operated two sets of railroad tracks running in a northerly and southerly direction and upon the same avenue the East Bay Street Railway Company operated two street railway tracks running in the same direction. The whole of Shattuck Avenue, which is approximately 130 feet wide, including the portion occupied by the four railway tracks, was devoted to vehicular and pedestrian traffic. No exclusive right of way was held by either of the railway companies. Between the sets of tracks of the two companies above mentioned there was maintained a safety zone approximately fifty feet long and three feet ten inches wide running parallel to the rails. The outside line of this safety zone was four feet nine and one-half inches from the most easterly rail of the defendant company but less than twenty-two inches from the overhang or projection of the cars operated by the company on those rails. While the plaintiff was standing in this safety zone awaiting to board an approaching ear of the street railway company and with her back to the rails of the defendant company she was pulled under a passing train of the defendant company and suffered the loss of a leg slightly below the knee. The theory of the plaintiff, supported by substantial evidence, is that while she was standing in this safety zone with her back to the defendant’s track the train passed at an excessive and unreasonable rate of speed without any sound of warning by bell, whistle or otherwise; that the speed of the train drew a coat which she was wearing into

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contact with some portion of the car so that she lost her balance and was thrown or fell under the wheels of one of the trucks. The theory of the defendant throughout the trial below was that the plaintiff carelessly and negligently ran in front of the train and was struck by some portion of the train and thrown under the wheels. Credible evidence supported defendant’s theory, but it was weakened to some extent by the absence of proof that there appeared upon the body of the plaintiff any physical evidences of having been struck by the train. The jury rejected defendant’s theory and found that it was negligent. The evidence of excessive speed and failure to give warning is sufficient to support the charge of negligence.