Williamson v. Pacific Greyhound Lines

GOODELL, J.

This is an appeal from a judgment on a verdict in defendant’s favor in an action for damages for personal injuries. On a prior appeal this court reversed a

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judgment of nonsuit (78 Cal.App.2d 482 [177 P.2d 977]). The present appeal is based solely on errors in instructions at the second trial.

Appellant was a passenger on a bus of respondent going from Napa to San Francisco. On boarding the bus she took an aisle seat four or five seats behind the driver and on his side of the bus. Appellant alleged that she was injured by a heavy suitcase, not her own, which fell from a baggage rack above the seats, an accident allegedly caused by respondent’s negligence in the operation of the bus and in failing to inspect and to take precautions for the safe storage of the baggage. She testified that when the bus went around a sharp curve it swayed and jolted with such force as to throw her against the woman seated on her left and that simultaneously with the jolt the suitcase fell from the rack and struck her on the head, right shoulder and arm.

Contributory negligence and assumed risk were pleaded as follows: “. . . . defendant alleges, upon its information and belief, that if plaintiff was a passenger upon defendant’s bus . . . she had full knowledge of the location of the baggage and baggage rack in said bus and carelessly and negligently failed to take any precautions for her own safety and assumed all of the risk incident to the situation.”

Appellant testified that she had only a handbag with her, had no occasion to look at the baggage racks, and did not do so. On cross-examination this was elaborated; she saw no baggage above her, saw none protruding from the racks, noticed nothing irregular with respect to the baggage racks, and did not observe any baggage being placed in or taken out of the racks. She “had no baggage and wasn’t interested.” There was no evidence that any of the baggage was in a dangerous position.

The court refused the following instruction tendered by appellant: "There is no evidence in this case which would support a finding of contributory negligence on the part of the plaintiff. ’ ’

The court gave the following instruction among others tendered by respondent: “I instruct you that the plaintiff, Margaret Williamson, during the time she was a passenger on defendant’s bus was obligated to exercise ordinary care to see and observe the condition within said bus and to observe and to exercise ordinary care in the observation of the condition of baggage stored within the said bus. Any failure on plaintiff’s part, if any, to use ordinary care in this