Hughes v. Pacific Electric Railway Co.

WORKS, J.

This is an action for the recovery of damages for personal injuries suffered by a child under five years of age, who sues by her guardian

ad litem.

Under stipulation the cause was tried together with an action for damages for the death of one Kate Johnston, an adult who lost her life in the same accident in which plaintiff in this cause was injured. The trial was by a jury. In their main circumstances the two causes of action were intimately related, as the plaintiff child was being led by the hand by the decedent when the accident occurred. The trial judge instructed the jury to render verdict in favor of defendant in the Johnston case on account of the contributory negligence of the deceased, and that outcome of course followed. As a result of this instruction, then, the case of

[377]

the minor was alone left to the actual deliberation of the jury, and a verdict was returned favorable to defendant in that action also. Both plaintiffs were represented by the same counsel, but no appeal was prosecuted from the judgment in the Johnston ease. Plaintiff minor, however, appeals from the judgment entered against her.

Appellant contends that she was entitled to have the jury instructed that, as a matter of law, respondent was negligent in the operation of its interurban electric cars which were concerned in the accident resulting in her injuries, which instruction was refused by the trial court. As a basis for the discussion of this question appellant cites

Rudd

v.

Byrnes,

156 Cal. 636 [20 Ann. Cas. 124, 26 L. R. A. (N. S.) 134, 105 Pac. 957], to the effect that although “the question of negligence is ordinarily one to be determined by the jury, yet where the facts are undisputed, and no inference but that of negligence can be drawn from them, the court may determine that negligence is shown as matter of law.” Appellant insists that the present ease is within this rule, for the reason that the uncontradicted evidence shows that Miss Johnston, who was alone struck directly by the moving cars, was thrown at least forty-three feet by the impact, and that the motorman in charge of the train could only, with all the braking power at his command, bring the ears to a stop at a distance of 255 feet from the point at which she was struck. Prom this it is argued that the evidence shows conclusively that the train was moving at an unsafe rate of speed, and