Lawyer v. Los Angeles Pacific Co.

SHAW, J.

Action to recover damages for personal injuries alleged to have been sustained as a result of defendant’s negligence.

Judgment for plaintiff was entered in accordance with the verdict of a jury. Defendant appeals from the judgment, and from an order denying its motion for a new trial.

Defendant concedes that it was negligent, bút as a defense alleges that plaintiff was guilty of contributory negligence, without which the collision wherein he received the injuries would not have occurred. The court instructed the jury to the effect that, if plaintiff was guilty of negligence which, together with defendant’s negligence, contributed directly or proximately to his injuries, then, notwithstanding defendant’s negligence, he could not recover. Appellant insists that the jury in rendering a verdict for plaintiff disregarded this instruction, for the reason that the evidence by an overwhelming preponderance thereof shows that his injuries were the result of his own negligence.

The evidence tends to prove the following facts: At the time in question defendant owned and operated an interurban line of double-track, electric railway, extending westerly along Santa Monica Avenue from the city of Los Angeles to points west of Los Angeles. The north track was generally used by defendant in operating its ears westerly and the east-bound cars operated on the south track. On February 17, 1909, plaintiff was a passenger on one of defendant’s cars running on the north track from a point east of Vermont Avenue, where, at about 7:30 P. m., he got off the car with the intention of walking thence along Santa Monica Avenue to his home, eight blocks farther west. As far as it extended, which was four blocks, he used the sidewalk on the south side of said avenue, and used the roadway south of defendant’s tracks for a distance of one hundred and fifty feet and then followed a path used by pedestrians, which path crossed defend

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■ant’s south track and meandered between the double tracks, on either side of which space separating these trades poles were set alternately for the purpose of supporting the trolley wire. It was quite muddy, to avoid which plaintiff, who had many times traveled thereon, followed this path which was used generally by pedestrians traveling along this part of the avenue. The car from which plaintiff got off at Vermont Avenue proceeded on its way westerly to a point several blocks west of the place where it collided with plaintiff, when, owing to the fact that the north track upon which it was running was obstructed, it was ordered back to a point east of Vermont Avenue, known as Melrose Junction, at which there is a cross-over, by means whereof it was switched to the south or east-bound track, over which it in the usual manner 'proceeded west again. When plaintiff left the sidewalk some four blocks west of Vermont Avenue, he looked back and saw a light there, but could not tell whether or not it was the headlight of a car. After plaintiff had crossed to the path between the tracks and walked about thirty feet he saw in front of him the reflection of a dim light projected from the rear and oscillating on the north track and ground, and about the same time heard a rumbling noise. After first seeing this reflected light he walked some ten feet, being near the north rail of thfe south track, when upon turning around he saw the car on the south track at a distance from him of some ten feet. He jumped toward the north track to escape this car, but was struck and suffered the injuries for which he claims damages.