Frascona v. Los Angeles Railway Corp.

FINLAYSON, P. J.

This is an action to recover damages for personal injuries alleged to have been caused by the negligence of defendant, a common carrier of passengers, while plaintiff was a passenger on one of its street railway cars. The case was tried by the court without a jury. Judgment passed for plaintiff and defendant appeals. The principal question involves the sufficiency of the finding upon the issue of defendant’s negligence as alleged in the complaint.

The complaint alleges a specific act of negligence on defendant’s part. After alleging that, while she was riding as a passenger on defendant’s street-car, plaintiff requested the conductor to let her off at the intersection of San Pedro and Sixteenth Streets, in the city of Los Angeles, and that the conductor thereupon gave the motorman the signal to stop, the complaint proceeds to allege that “said car was brought to a standstill, and while this plaintiff was attempt

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ing to step from the bottom step on said car to the ground, said ear was suddenly started forward and this plaintiff was violently thrown upon the ground.” The answer denies that the car was brought to a standstill; denies that, while the car was standing still, plaintiff attempted to alight; denies that, while plaintiff was alighting the car was suddenly started forward; and alleges that before the car had reached the customary and usual stopping place at the intersection of Sixteenth and San Pedro Streets, and while it was still in motion, plaintiff, carelessly and negligently, attempted to step on the ground and fell.

There was a sharp conflict in the evidence. Plaintiff and her witnesses testified that the accident happened as alleged in the complaint; while the witnesses for defendant, with equal positiveness, testified that plaintiff stepped from the car before it had come to a standstill.

Instead of a finding showing the truth of the averment of negligence as made in the complaint, we are left to conjecture whether the trial court may not have attributed the accident to some other and wholly different act of negligence. Instead of a finding that the accident happened as specifically described by plaintiff in her complaint, the court’s finding of negligence is couched in most general terms. The sole finding upon the issue of negligence is this: “That defendant corporation operated said street-ear in a careless and negligent manner, then and there injuring plaintiff, Mary Frascona; and that said carelessness and negligence of the defendant corporation was the direct and proximate cause of plaintiff’s injuries.”