Learned v. Peninsula Rapid Transit Co.

RICHARDS, J.

This is an appeal from a judgment in favor of plaintiff in an action for damages for injuries sustained by her in a collision between a motor-bus of the defendant, upon which she was a passenger, and a street-car of the municipal railroad of San Francisco. The jury returned a verdict in plaintiff’s favor for the sum of six thousand dollars, for which judgment was entered; but the court, upon defendant’s motion for a new trial, ordered that, unless the plaintiff should consent to a reduction of this amount to two thousand dollars, a new trial would be granted. The plaintiff consented to this reduction, whereupon the new trial was denied.

The defendant appeals from the judgment as thus modified, and urges four points upon appeal: (1) That the court’s instruction upon the burden of proof was erroneous; (2) that its instruction concerning future suffering was erroneous ; (3) that the motion for a new trial upon the ground of newly discovered evidence should have been granted, and (4) that the damages were excessive.

The instruction upon the burden of proof of which the defendant complains reads as follows: "Contributory negligence on the part of a passenger cannot be presumed from the mere fact of an injury, but must be proved. On the other hand, the proof of an injury to a passenger on the bus or vehicle of a common carrier casts upon the common carrier the burden of proving that the injury was occasioned by inevitable casualty or some other cause which

[438]

human care or foresight could not prevent, or by the contributory negligence of the passenger. In the answer filed by the defendant it has claimed that the injuries, if any, sustained by the plaintiff on the tenth day of September, 1917, referred to in plaintiff’s complaint were sustained through the negligence of the operatives of the municipal street-car. I charge you that this defense is an affirmative defense, and under the law of this state the burden of proving such defense is upon the defendant; and I instruct you in this connection that if you find from the evidence that the operatives of the municipal street-ear were negligent, and that the operative of the motor-bus was also negligent, then your verdict must be in favor of the plaintiff and against the defendant, Peninsula Rapid Transit Co.”