De Soto v. Pacific Electric Ry. Co.

JAMES, J.

In this action for damages, alleged to have been caused through the negligence of the defendant, plaintiffs had judgment. Defendant appeals, assigning as prejudicial errors committed by the trial judge the giving of certain instructions to the jury as to the law and the refusal to give certain offered instructions on the part of the defendant.

Marie De Soto suffered the injuries complained of, the second party plaintiff being her husband and being joined only because of his relationship to her. For convenience we will refer to Marie De Soto as though she were the sole

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plaintiff. The negligence complained of consisted in leaving unattended and without repair a ragged gutter or. depression on the outside of a railroad track. This track curved at the point mentioned and the- gutter or depression was for a number of yards along the outside of the outermost rail on said curve. Plaintiff was being conveyed in an automobile along the street upon which defendant’s tracks were so laid and said depression existed. The wheels of the automobile entered the gutter along the rail and in some manner were so held there that the automobile was overturned and plaintiff suffered injuries. That these injuries were of a serious character, no question is made by the evidence. No question was made at the trial as to the fact that the defendant, by allowing the gutter to exist beside its tracks, was guilty of negligence. There were two questions which the jury had to resolve in order to reach a conclusion favorable to thei plaintiff’s claim: 1. "Whether the negligence of the defendant was the proximate cause of plaintiff’s injuries; 2. whether the plaintiff was herself guilty of such negligence as contributed proximately to produce her injuries. These further facts may be stated: The plaintiff on the night of the accident was riding in an automobile belonging to her brother-in-law, whom she had requested to convey her, as a matter of friendly accommodation, to a near-by store. She exercised no control over the driver of the machine other than to indicate the place to which she desired to be transported. Under these conditions the journey was made to the store, and it was upon the return therefrom that the accident happened. There was no testimony indicating that the brother-in-law was an incompetent driver, or that prior to the time of the accident he had been driving at an unusual or dangerous rate of speed. There was the testimony of one witness who observed the marks made by the wheels of the automobile upon the ground and about the tracks at the point where it was overturned, and this testimony is made the basis for the argument that at the time of the accident the machine in which the plaintiff was riding must have been traveling at a high rate of speed. "We will advert to that matter at a later point in the opinion. It may be added further that the defendant by its answer did allege in proper terms that the relationship between the plaintiff and the brother-in-law was such as to make her responsible