Gray v. Los Angeles Railway Corp.

HOUSER, J.

Plaintiff brought action against the defendant for damages claimed to have been sustained by plaintiff by reason of the alleged negligence of the defendant in its operation of a street-ear on which plaintiff was a passenger.

The accident occurred near a street intersection where plaintiff desired to alight from the street-car. The principal issue on the facts of the case was whether plaintiff received his injuries by reason of the fact that he stepped off the street-car while it was in motion, or whether plaintiff was thrown from the street-car because of its negligent operation by the defendant. The case was tried by the court sitting with a jury, which returned a verdict in favor of plaintiff. The defendant appeals from the judgment, and urges prejudicial error in the giving of certain instructions to the jury at plaintiff’s request, as well as in the refusal by the court to give to the jury certain other instructions at the request of the defendant. Special attention is directed by the appellant to the following instruction given to the jury at plaintiff’s request:

“Contributory negligence on the part of a passenger cannot be presumed from the mere fact of injury, but must be proved. On the other hand, the proof of an injury of a passenger on the car of a common carrier casts upon the common carrier the burden of proving that the injury was occasioned by inevitable casualty or some other cause which human care and foresight could not prevent or by contributory negligence of the plaintiff, unless the proof on the part of plaintiff tends to show that the injury was occasioned by the contributory negligence of the passenger or by inevitable casualty or by some other cause which human care and foresight could not prevent.”

[125]

The criticised instruction is identical with that given to the jury on the trial of the case of

Boone

v.

Oakland Transit Co.,

reported in 139 Cal., at page 490 [73 Pac. 243]. However, it appears that the facts in the two cases differ in that in the Boone case there was no question as to the manner in which the accident occurred, and the opinion therein, while recognizing the accuracy of the law as stated in the instruction, limited its application to the facts as shown by the record.