Ruppel v. United Railroads

COOPER, J.

This is an action by the plaintiff, as administratrix of the estate of Conrad Ruppel, deceased, to recover damages, alleged to have been sustained by the heirs of the deceased, by reason of his death, resulting from the alleged negligence of the defendant corporation in the operation of its cars on the public streets of the city of San Francisco.

The jury returned a verdict for defendant. On motion of plaintiff the court below granted a new trial, on the ground that the evidence' does not support the verdict, but shows negligence on the part of the defendant.

This appeal is by defendant from the order.

The judge of the trial court saw the witnesses and heard the evidence while looking at them, and for this reason is much better qualified to judge of their credibility and the value of the evidence than we are. It is the duty of the trial

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judge, on a motion for a new trial, to exercise his judgment and discretion in reviewing the evidence, and, even though it is conflicting, to grant „a new trial if he does not believe-the verdict is the correct conclusion from all the evidence.. The power of the trial court to so review the evidence is a salutary one, and often prevents great injustice from being-done by an erroneous verdict. It is only in cases of abuse of' discretion that this court will interfere. We have carefully-examined the evidence and find no such abuse of discretion.

The evidence tends to show that early in the morning. of' April 5, 1902, the deceased, in a light wagon, was driving a single horse along and down Mission Street in the city of San. Francisco at a place where there was a slight incline in the-grade. A street-ear belonging to defendant, on which there-were passengers, a motorman, and conductor, going in the-same direction, ran up from behind, and" struck the hub of the left hind wheel of deceased’s wagon, precipitating him to-the ground in a violent manner and killing him almost instantly. The ear and wagon were in full sight of each other-for several hundred feet prior to the collision, and the wagon was in full sight of the motorman. It is not clear from the-evidence whether any portion of the wagon was on the defendant’s track at the time of the collision or not, but it is-not material, as it is clear beyond question that the left hind wheel of the wagon was, if not on the track, near enough to-it that the ear, instead of passing, struck it, thus causing the-death. There is evidence that the car was going pretty fast, and one witness testified that in his opinion it was going at. the rate of about ten miles an hour. All the evidence shows-that the motorman did not ring the bell until in close proximity to the wagon, some of the witnesses placing it at ten feet.