Nicholson v. Porter

JENNINGS, J.

Plaintiff appeals from a judgment in favor of respondents. After appellant had presented the evidence upon which she based her claim for recovery and

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had rested, respondents moved the court for a nonsuit. The motion was granted, judgment in favor of respondents was duly entered and the appeal therefrom was taken.

Prom the record the following facts appear: On April 7, 1928, respondents were copartners operating an automobile stage business under the fictitious name of Gate City Bus Company. Appellant was a passenger for hire on a bus operated by respondents on said date. At 9:30 in the evening of said day the bus on which appellant was traveling as a passenger was proceeding north on Mt. Vernon Street in the city of San Bernardino and was approaching the intersection of Mt. Vernon Street and Tenth Street in said city. As the bus approached the intersection of the two streets its speed was diminished preparatory to its coming to a complete stop for the purpose of permitting passengers to alight. As the bus was thus slowing down and moving at a speed of from five to six miles per hour it was struck in the rear by an automobile operated by one Floyd M. Sousa. As a result of the collision appellant received certain personal injuries. At the time the collision occurred it was dark. The bus was not equipped with a stop-light.

Appellant’s sole contention is that the bus in which she was riding as a passenger was not equipped with a stoplight which would illuminate the word “Stop” and indicate to anyone approaching from the rear that the bus was about to come to a complete stop. The failure by respondents thus to have equipped the bus is said to constitute negligence in its maintenance entitling appellant to recover for her injuries. Section 2101 of the Civil Code is cited as imposing upon respondents a duty in this regard. The statute reads as follows: “A carrier of persons for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care.”

Unfortunately for appellant, the record herein shows that as a part of her case, under stipulation of counsel, a written statement of Floyd M. Sousa, the operator of the automobile which collided with respondents’ bus, was admitted in evidence. In the statement thus introduced, the witness stated that he had been following the bus for about a block and a half; that he could see the bus by the lights of his automobile; that he looked around; that he did not