Carpena v. County of Los Angeles

[542]

SCOTT (Robert H.), J. pro tem.

*

Plaintiff appeals from an adverse judgment in an action for personal injury. The ease was tried by the court without jury. It was stipulated that the issue of liability should be tried and determined before evidence would be offered on the issue of damages. The court found that defendant was not negligent and that plaintiff was negligent and that such negligence was a proximate cause of his injuries.

At the time of the accident plaintiff was a prisoner riding in a Los Angeles County sheriff’s department jail bus. On Sunday, February 23, 1958, plaintiff had been arrested, and on Monday, the 24th, he pleaded guilty to drunk driving and on Tuesday, the 25th, was placed in the jail bus for transportation from the city of Monrovia to the county jail in the city of Los Angeles. His hands were placed in hand cuffs with his hands in front of his body, in conformity with the sheriff’s rule that prisoners in transit be handcuffed. The aisle was to the right of plaintiff.

Plaintiff was sleeping or almost asleep with his hands on the back of the seat in front of him and his head on his hands when the bus gave a jolt or jerk and plaintiff fell from his seat onto the floor of the bus, apparently hitting his head and right shoulder. He was assisted back to his seat and a compress was applied to his head where it was bleeding.

Plaintiff seeks to recover under section 400 (now numbered 17001) of the Vehicle Code. He contends that defendant failed to exercise the degree of care required by law and that he himself was without negligence.

It was raining very hard and there was water in the street several inches deep. The bus had dual wheels in the rear and in making a turning movement one of them hit something which caused the bus to bump or jolt. It was before 3 o’clock in the morning and was pitch dark. The driver of the bus did not know the cause of the jolt and his testimony furnished ample evidence upon which the court could find that he was exercising ordinary care. A fellow prisoner in the bus undertook to express an opinion that the wheel had hit a curb but it appears that he had not seen it do so and that from the position in the bus where he was sitting his testimony as to his perception of objects and conditions in the dark outside would have little if any probative value in determining how the jolt occurred. Another prisoner was sitting between him and the