Andrews v. San Diego Electric Railway Co.

KERRIGAN, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiffs in an action

[415]

for damages for personal injuries suffered by plaintiff Celia E. Andrews in a so-called “step accident” alleged to have occurred through the negligent operation by the defendant of one of its street-cars in the city of San Diego.

[1]

The simple questions in the case for the jury were, Did said plaintiff attempt to alight from the car while it was in motion, or was the car started while she was in the act of alighting?

There is evidence in the record supporting both an affirmative and a negative answer to each of these questions. The victim of the accident testified in part as follows:

“Q. In other words, the car stopped, you mean, when it came up to Ninth Street? A. Yes, sir. . . .

“Q. Well, then, what did you do, if anything, towards getting off? A. Stepped down from the platform on to the top step of the car.

“Q. What happened then? A. The car started and threw me to the ground. . . .

“Q. Did you know that it was going to start? A. No, sir. ...

“Q. Now, did anyone say anything, was anything said to you by anyone at the time you were disembarking or leaving this car? A. As I was falling from the car someone said, ‘Don’t get off, lady.’

“Q. What was the car doing at the time you were told not to get off? A. It had started. . . .

“Q. Now, after that occurred, I mean after the conductor or whoever it was made the remark, ‘Don’t get off, lady,’ or words to that effect, were you able to recover yourself and keep from falling at that time? A. No, sir.”

The evidence of other witnesses called by the plaintiffs corroborated this testimony. Defendant appears to contend that the evidence shows without conflict that the car had traveled fifty feet—the length of the car—between the time it had stopped, started, and stopped again, and that the injured plaintiff, who got off at the middle of the car, and who was found lying alongside of it twenty-five feet from such point of exit, must of necessity have stepped off "the car while it was in motion. But in this respect we think defendant is in error. There is a conflict in the evidence upon this point, some of the witnesses testifying that the car had moved forward about twenty-five feet only from