McAlpine v. Los Angeles Railway Corp.

WOOD (W. J.), J.

Plaintiff commenced this action to recover for damages suffered when she was injured after she had alighted from a streetcar operated by defendant. A jury returned a verdict in favor of defendant and plaintiff has appealed from the ensuing judgment.

[488]

There is no dispute as to the facts. Plaintiff was a passenger on one of defendant’s cars on June 16, 1942. When the car stopped at 7th and Hill Streets in Los Angeles she alighted from the car and stepped into the loading zone and walked along the loading zone to its end, a distance of about 50 feet, with the intention of transferring to another car. At the end of the loading zone she stood inside the painted white line waiting for the traffic signal to change. A streetcar which had stopped in front of the car from which plaintiff had alighted passed on, followed by the car in which plaintiff had been a passenger. After this car had resumed its forward motion a man named Ward came from the curb and boarded the rear steps of the car at approximately 10 feet from plaintiff. His hips protruded into the loading' zone and as the rear of the car passed, plaintiff was struck by the protruding hips and was knocked down. The conductor of the streetcar had signaled to the motorman to proceed after observing that the steps were clear. The motorman had observed through his rear window that the rear steps were clear when he started the car.

Plaintiff now contends that the court erred in giving to the jury the following instruction: “I instruct you that at the time of the happening of this accident Section 80.46 of the Los Angeles Municipal Code, as found in Ordinance No. 77,000, provided as follows: ‘No person shall board or alight from any street car or vehicle while such street car or vehicle is in motion.’ I further instruct you that a violation of the section which I have just read to you is negligence as a matter of law. If you find from the evidence in this case that after the street car from which plaintiff had previously alighted had started and was in motion and while in motion a person attempted to board the steps at the rear end thereof and that in so doing his body projected out into the loading zone and struck plaintiff as the car was passing her position, and if you further find that such was the sole, proximate cause of the injuries sustained by plaintiff, then I instruct you that there can be no recovery by plaintiff in this case and your verdict mnst be against the plaintiff and in favor of the defendant.”