Wendler v. Pickwick Stages System

[593]

BURROUGHS, J.,

pro

tem.

This is an action for personal injuries sustained by the plaintiff while riding as a passenger on an autostage owned and operated by the defendant who was a common carrier. The cause was tried by the court without a jury. Findings of fact were entered in favor of the plaintiff and she was awarded a judgment in the sum of $4,362.45. From the judgment the defendant has appealed to this court.

Plaintiff’s cause of action is based upon the doctrine of

res ipsa loquitur..

The answer alleges as a special defense: “That the tire-rim on one of the wheels of defendant’s said automobile, which caused the tire to blow out on said automobile stage of defendant became broken and disconnected and was defective, thereby rendering further control of said automobile stage by the operator thereof impossible; that defendant used all reasonable precaution and diligence and the highest degree of care by way of inspecting the said automobile stage, and especially the wheels and tire-rims and tires on said automobile stage immediately prior to the accident referred to in plaintiff’s said complaint, but that said defect, or defects, were latent and not susceptible to discovery and that said accident was wholly unavoidable on the part of this defendant.”

The evidence discloses that the plaintiff was riding as a passenger in the defendant’s autostage from Eureka to Trinidad in Humboldt County, California. At a point near McKinleyville, the stage suddenly plunged from the highway into a ditch, where it turned partly over against an embankment. The plaintiff was thrown violently from her seat in the stage to the floor. Her knee and back were injured, she was taken from the autostage through a window and hurried to a hospital in Eureka; California, where examinations disclosed a very severe sprain of the right knee. The knee was very much swollen and extremely painful. She remained in the hospital twenty-three days and was removed from there to her daughter’s home in Eureka, where she was under treatment for her injuries for a long period of time. The trial of the action was held nearly two years after the accident and the plaintiff was still under treatment, and suffered very severe pain and was unable to walk, except with the aid of a crutch or cane. She has also developed