Franklin v. Visalia Electric Railway Co.
Before: Allen
Synopsis
Carriers—Starting Electric Car Before Passenger Alights—Evidence.—In an action by a passenger for injuries sustained in attempting to alight from an electric car prematurely started, other passengers who did not see the accident may testify that they attempted to alight at the same point, but that the ear started before they could do so.
Id.—Duty to Stop for Passenger to Alight.—It is the duty of a carrier to stop its electric cars a reasonable time at the destination of passengers to allow them to alight in safety.
Id.—Negligence in Starting Car Prematurely.—Where an electric train has stopped for passengers to alight, negligence arises from ■prematurely starting it, without warning, whether violently or otherwise.
Id.—Instruction—Refusal Because Embraced in Others.—Prejudicial error does not result from the refusal of requested instructions on questions covered by other instructions actually given.
Id.—Injury to Married Woman—Contributory Negligence of Husband.—In an action for injuries to a married woman, caused by the sudden starting of a car when she was alighting, an instruction that if her husband was guilty of contributory negligence proximately contributing to the injury, a recovery cannot be had, is properly denied, if there is no evidence tending to show such negligence on Ms part, except that he observed there was no one on the ground to assist ladies in alighting, and he himself was lacMng in gallantry.
Id.—Preponderance of Evidence—Necessity of Court Defining.— Where the court has called the attention of the jury to their duty, it is not necessary to instruct them as to the meaning of the word “preponderance” and give illustrations.
ALLEN, P. J.
The action was by Franklin and wife to recover from defendant damages on account of personal injuries received by the wife while a passenger on one of defendant’s cars. The complaint alleged that the car was by defendant stopped for the purpose of permitting passengers to alight therefrom; that while said car was standing still for the purpose aforesaid, the wife, whose ticket entitled her to passage to such point, with due care, endeavored to alight from said car; that while so attempting to alight, and when in the act of stepping from the second to the last step on the car, the defendant, without warning, negligently, carelessly, and unexpectedly to said plaintiff, set said car in motion suddenly and violently, and with such force that the wife was thrown violently from the car to the ground, suffering injuries particularly described, to her damage in the sum of one thousand dollars. The answer denied these allegations and pleaded contributory negligence. The case was tried by a jury, which returned a verdict in plaintiff’s favor for six hundred dollars. From the judgment rendered thereon defendant appeals under the alternative method.
Appellant’s first contention is that the court erred in permitting other passengers who did not see the accident to testify that they too were passengers ticketed for the same
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point and attempted to alight from the car, but that the ear was started before they had an opportunity to alight without jumping therefrom while the train was in motion. We see no error in this. The evidence tended to show conditions at the time and place of the accident and the premature starting of the train. 'The real issue presented was as to the negligence of defendant in setting the car in motion without warning and while plaintiff was in the act of alighting therefrom. This was the specific act of negligence. Any evidence on plaintiff’s part tending to support this issue was, in our opinion, competent. The cases of
Foley
v.
Northern Cal. Power Co.,
14 Cal. App. 410, [112 Pac. 467] ;
Cary
v.
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