Webb v. Los Angeles Railway Corp.

CRAIG, Acting P. J.

Separate actions commenced by one of the plaintiffs in his own behalf, and as guardian

ad litem

on behalf of a minor child were consolidated for trial, and were submitted to a jury upon the evidence adduced by the plaintiffs, without the offer of evidence by the defendants. Verdicts in favor of the former were returned, a motion for a new trial was interposed by said defendants, which was granted, and the plaintiffs appealed from such ruling.

At an intersection of thoroughfares in the city of Los Angeles, known and designated as Vermont Avenue and Eighty-fourth Place, respectively running northerly and southerly and easterly and westerly, the appellants, while driving easterly in an automobile, were injured by the collision of a south-bound street-car of the respondent corporation therewith. The car was first seen about 300 feet away, approaching at a speed of 30 to 35 miles per hour, as the automobile made a boulevard stop, proceeded to cross

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Vermont Avenue, and was stalled on the car-tracks. Attempts to start the same proving fruitless, the occupants waved their arms and shouted, but the street-car continued on, struck the machine, and carried it some distance to and against a large pole. At the close of the plaintiffs’ evidence, counsel for the defendants announced that “the defendant submits the case on the plaintiffs’ own testimony”. Following the verdicts and the motion for a new trial, the court in granting the same stated, in part: ‘‘The only question for consideration on this motion is whether or not the evidence would support a finding against the defendants under the doctrine of last clear chance. If the evidence would not support such a finding then the court erred in instructing the jury upon that question. It would be only upon an application of the doctrine of the last clear chance that the plaintiff would be entitled to recover, if at all.” It becomes necessary to examine here the evidence upon which the jury awarded damages and from which appellants contend that the trial court erroneously arrived at the foregoing conclusions. The plaintiffs testified that the avenue “to the north from which direction the street ear came was level and straight 2,000 feet or more from the intersection”; that they were familiar with the crossing; that they drove thereto at about 7:30 in the morning, looked and saw nothing in the way, then proceeded to cross; but .for some unknown reason the machine “came to an absolute stall and still position on the west track. The automobile did not move after it stalled until the collision.” When the street-car was first seen it was about 300 feet away, and when the automobile stopped the car was approximately 100 feet or more away, north of the intersection. The motorman began ringing his bell at a point nearly 200 feet from the point of impact. The appellant swore that his motor was still, that he was unable to get it started, but that he “shifted into low gear to get it off” the track, and that it “rolled back just a little”. One witness testified that he “heard the gong on the car from the time the car was 150 feet to 200 feet away continuously until it hit the auto”; that “when the auto came t.o a final stop the electric car was 75 feet away”; that the “speed of the car did not lessen at all from the time I first saw it 150 to 200 feet north to the point of the collision. The collision was very heavy.” Another testified that when