Harrell v. Fresno Traction Co.

RICHARDS, J.

This is an appeal from a judgment in the plaintiff’s favor for the sum of one thousand five hundred dollars and costs of suit in an action brought to recover damages for personal injuries.

The plaintiff alleged in his complaint that he was a passenger for hire upon one of the' ears of the defendant operated along and upon the streets of Fresno; that when the car had proceeded along its route to a certain street it stopped to enable the plaintiff and other passengers to alight therefrom ; that while the plaintiff was in the act of alighting from said car, and while partly thereon, having his left foot upon the ground and his right foot upon the running-hoard, and while still holding on to the upright stanchion with his right hand, the employees of the defendant in charge of the ear negligently caused the said car to be suddenly and violently started forward, causing the plaintiff to he thrown to the ground, breaking his left leg and causing other injuries and damages as detailed in the complaint.

The answer of the defendant admitted that the plaintiff had been a passenger upon its said car, but denied that the car had been started until after the defendant had fully alighted and separated himself from the car. The answer also undertook to set up that the plaintiff had been guilty of contributory negligence, which was specifically alleged to have consisted in the plaintiff having fallen and injured him

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self by his own act after he had fully alighted from the car and ceased to be a passenger thereon.

Upon the issues as thus defined the cause went to trial, which resulted in the judgment in plaintiff’s favor from which this appeal has been taken.

The first contention of the appellant is that the evidence is insufficient to support the judgment; but in view of thé fact as shown by the record, that the plaintiff testified circumstantially to the manner in which his injuries had occurred, and in which they were caused by the negligence of the defendant’s employees in starting the car while he was in the act of alighting from it as set forth in his complaint—in which testimony he was supported in some degree by the testimony of another witness and by certain other circumstances in the ease—it cannot be said that the verdict would not be sufficiently supported by such evidence if the jury saw fit to give greater credence to it than to that of the greater number of the defendant’s witnesses. There is no merit therefore in the plaintiff’s first contention.