Ross v. Pacific Electric Railway Co.

SHAW, J.

Action by husband and wife to recover damages sustained by the wife for personal injuries alleged to have been caused by defendant’s negligent operation of an electric street-car.

[659]

Plaintiffs appeal from a judgment in favor of defendant, entered upon an order of court granting the latter’s motion for a nonsuit made at the close of plaintiffs’ evidence.

Defendant was the owner of a double-track electric railway line which crossed North Avenue 59 on a street in Los Angeles known as Pasadena Avenue, and over which latter street it operated cars for the transportation of passengers. At the time of the accident in which plaintiff sustained the injuries complained of she, in the daytime, as a passenger on one of defendant’s out-bound cars, operated easterly over the southerly track, was returning from the city of Los Angeles to her home on Avenue 59. When the car on which she was traveling reached Avenue 58 she indicated her desire to get off at Avenue 59, at which point defendant’s cars operated in either direction were stopped only upon signals given by passengers that they wished to get on or off its ears at such place. The car was accordingly stopped at the usual stopping place for passengers getting off at said point, and plaintiff alighted on the southerly side of the southerly track, upon which the car was being operated, and walked slowly around the rear of the ear, sufficiently near the same to touch it with her hand, intending to cross the northerly or opposite track, which it was necessary to do in order to reach her home north of Pasadena Avenue on Avenue 59. When she reached a point in the space separating the two tracks, a car traveling westerly on the northerly track passed, the projecting step of which struck her, knocking her down and causing the injuries which are made the subject of the action. The evidence tends to show that in passing the car from which plaintiff alighted, the west-bound car on the northerly track gave no warning of its approach or proximity. That its failure so to do constituted negligence on the part of the defendant, is conceded.

The order granting defendant’s motion for nonsuit was based upon the conclusion of the court that the evidence conclusively established the fact that plaintiff was guilty of contributory negligence which was the direct and proximate cause of the injury received by her. The space between the inner lines of defendant’s car tracks was six feet and seven inches, and the overhang of the cars when passing each other reduced this space to three feet and seven inches; that is, overhang of each car was eighteen inches. It thus appears that after plaintiff had reached a point corresponding with