Brininstool v. Pacific Electric Railway Co.

CUBTIS, J.

This action was instituted to recover damages against the defendant for injuries alleged to have been sustained by the plaintiff, Estelle 0. Brininstool, in attempting to board an electric street-car belonging to and operated by the defendant in the city of Los Angeles. The case was tried before a jury, who rendered a verdict in favor of the defendant. Plaintiffs moved for a new trial upon all the grounds set forth in section 657 of the Code of Civil Procedure, except subdivision 5 thereof. The court granted the motion upon the ground that the evidence was insufficient to sustain the verdict. From this order the defendant has appealed and now contends that the trial court was guilty of an abuse of discretion in granting this motion.

In the complaint it is alleged that while the defendant’s car was at a standstill at the usual stopping place for taking on and letting off passengers, at the corner of Hill and Fifth Streets in the city of Los Angeles, the plaintiff, Estelle 0. Brininstool, undertook to board said ear for the purpose of becoming a passenger thereon, and that when she was on the lower step of said car, on her way into said car, the defendant negligently, carelessly, and suddenly started said car forward with a lurch and she was thrown thereby from said car upon the paved street below. This allegation is denied by the defendant and upon the decision of this issue thereby made hinges the final determination of this controversy.

In support of this allegation of the complaint plaintiffs produced four witnesses, including the said Estelle 0. Brininstool, all of whom testified in substance that the car of defendant had come to a full stop before the said Estelle 0. Brininstool attempted to board it, and that after she was

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on the lower step of the ear, it suddenly started up and she was thrown to the pavement. Mrs. Brininstool testified that she and Mrs. Frazier were at the northwest corner. of Hill and Fifth Streets waiting for the car; that the car approached the intersection of these two streets on Hill Street from the north; that it first stopped a short distance north of the usual stopping place at said street intersection, on account of another car which was directly in front of it. When this second car passed down the street, the car for which the witness was waiting slowly approached the regular stopping place and came to a standstill, and the witness and Mrs. Frazier both stepped upon the first or lower step of the car for the purpose of boarding it and going to their homes. Almost immediately upon their stepping upon this first step, the car started with a jerk, throwing Mrs. Frazier to the street first and then the witness. Mrs. Brininstool was corroborated in her testimony by Mrs. Frazier, whose statement of the affair agreed in all essential particulars with that of Mrs. Brininstool. Another • witness, Isadora Gralla, a newsboy selling papers at this corner, testified that he saw the car come to a standstill and the ladies ’attempt to board it. After they got on to the lower step of the ear he turned around to sell papers, and the next thing he saw was Mrs. Frazier falling off of the car about fifteen feet from the point where they started to board the car, and in about fifteen feet more Mrs. Brininstool fell off. The other of the four witnesses who testified in favor of plaintiffs, was Mrs. Moffatt. She stated that she attended a meeting with Mrs. Brininstool and Mrs. Frazier the afternoon of the accident; that she went with them to the corner of Fifth and Hill Streets, where they were to take the car; that Mrs. Brininstool and Mrs. Frazier were standing waiting for the car when it approached very slowly and came to a complete stop; that when the car had stopped its rear entrance was in front of, or opposite, the point where the ladies were standing; that the ladies attempted to board it, but the bell to start the car was given “so quick that it was hard to tell how long it stopped.” She further stated that on account of the traffic she did not keep her eyes upon the ladies all the time, but that immediately upon hearing the bell she looked to see where her friends were and saw Mrs. Frazier thrown to the street and