Bohn v. Pacific Electric Railway Co.

[623]

SHAW, J.

The defendant owned and operated an electric railway line running from the city of Los Angeles through the town of Compton to Long Beach. It appears without conflict in the evidence that on September 12, 1904, the defendant was running a car at the usual rate of speed north on Wilmington street in said town of Compton, and when approaching Main street, which crosses said Wilmington street, one Peter Bohn appeared in a vehicle, to which was hitched a team of horses which he was driving south along said Wilmington street parallel with and on the west side of defendant’s trades. The car, running at a speed of fifteen to twenty miles per hour, which was not in excess of the usual speed, was approaching the crossing at which there was a sign, “Bail-road, Look'out for the Cars,” and its approach was in plain view of said Peter Bohn; the usual signal whistle was given and the gong was kept going. There was nothing in Bohn’s manner which indicated that he contemplated trying to cross the track until the car had reached a point about sixty to ninety feet from the crossing, when he suddenly turned his' horses upon the track, with the result that a collision occurred, in which said Peter Bohn was killed. His administrator sues for damages.

At the close of plaintiff’s evidence defendant moved for a nonsuit, which was denied. Defendant then introduced its evidence and renewed its motion for a nonsuit, which motion the court granted, and judgment was entered for defendant. Plaintiff’s motion for a new trial was denied, and he appeals from that order.

The error assigned is the order granting the motion for nonsuit.

It is not claimed that the deceased was not guilty of gross negligence, as he clearly was, but it is contended that the motorneer in charge of said car saw the deceased upon the track in time to have stopped the car, and by the exercise of ordinary care he could have stopped the car after he saw the danger to which said deceased was exposed by reason of his position.

Appellant contends that the action of the court in granting the motion was in violation of section 2101 of the Code of Civil Procedure, and section 7, article I of the constitution of this state, which provides: ‘The right of trial by jury shall be secured to all, and remain inviolate.” Like constitu