Lynch v. Pacific Electric Railway Co.

CONREY, P. J.

The plaintiff, as administratrix of the estate of her deceased husband, William Edward Lynch, prosecutes this action against the defendant to recover damages on account of the death of her husband, which she alleged was caused by negligence of the defendant employer of said Lynch. The charge is that on the twenty-ninth day of April, 1913, “while the defendant was attempting to' draw a gravel train of cars over its tracks on a steep upgrade,.

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near Redondo Beach, California, the defendant negligently failed to furnish sufficient electricity, the motive power thereof, to pull said train, ... so that while the said William Edward Lynch was in the act of passing between two cars of said train, the front part of said train slipped back against him and caught him between said two cars, crushing him so that he immediately died therefrom.” The complaint also alleged negligent failure of the motorman to put on brakes as a proximate cause of the accident. After the evidence had been received as offered by the respective parties, the court, on motion of the1 defendant, instructed the jury to find for the defendant. This the jury did, and- judgment was rendered accordingly. From that judgment the plaintiff has appealed.

At the commencement of the trial, counsel for plaintiff abandoned his claim of negligence on the part of the motorman, and admitted that at the time in question the motorman did throw on the power as quickly as he could, but that before he could put on the power the car slipped back and caught Mr. Lynch between the two cars whereby he was killed. The ease was tried upon the charge that the defendant negligently failed to furnish power to make it sufficiently safe for him to work. The circumstances were as follows: The defendant was operating a line of electric cars from Los Angeles to and through Redondo and to a place called Clifton, a short distance south of Redondo. Its passenger-ears did not run beyond Clifton. At a point a half mile or more beyond Clifton defendant had a gravel-pit, to which it had extended a track on which a motor and cars were operated for the transportation of gravel. This track ran on an upgrade from the gravel-pit toward Clifton. Power was obtained through a trolley wire running over the track down to the gravel-pit, which trolley wire was continuous with the wire used by the passenger-cars running to Clifton, and carried the same supply of power. The result was that sometimes, when cars were actually running on what was called the Clifton section, their consumption of power reduced the supply of power available for the gravel-cars, and there was not always sufficient power to bring the gravel-ears upgrade. A cluster of electric lights on the motor car of the gravel train was utilized by the operatives • of the gravel train to show them whether at any given time there was or was not