Stadler v. Pacific Electric Railway Co.

SHAW, J.

Action to recover damages for the death of plaintiff’s intestate, Mary J. Quesenberry, which is alleged to have occurred in an accident due to defendant’s negligence in the operation of its electric ears.

The case was tried before a jury which brought in a verdict for defendant. Judgment followed; plaintiff moved for a new trial, which motion was denied, and he appeals from said order denying his motion.

The facts, so far as required to elucidate the alleged errors, are as follows: At the time of the accident defendant was the owner and engaged as a common carrier of passengers in the operation of an interurban electric line of railway consisting of four tracks extending from the city of Los Angeles in a southerly direction to the city of Long Beach and other towns. At a point where the tracks cross what would constitute Thirty-ninth Street if projected, the railway company owns the right of way, which is fenced so as to prevent vehicles from crossing the tracks, but having openings therein for egress

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and ingress of pedestrians. The two inner tracks were used in the operation of through cars which did not stop at Thirty-ninth Street. The through south-bound cars were operated on the westerly of these two inner tracks, and the through north-bound cars were operated on the easterly inner track. The two outer tracks were used in the operation of cars doing local business and stopping at Thirty-ninth Street for passengers getting on and off the cars at that point. For their convenience, the railway company had constructed a dirt walk or passageway some ten or fifteen feet in width and flush with and extending across the tracks, at both ends of which walk and next to the outer tracks was a dirt platform at which the local cars stopped to take on and let off passengers. On the evening in question, it being dark, the deceased boarded a local car in Los Angeles, which ran south on the westerly track, and which upon arriving at the Thirtyuinth Street station stopped at the dirt platform on the outer side of the track, where she got off the car, which proceeded on its way south. After this car left the station, she started east across the tracks, at which time a local ear going north on the easterly track approached and as usual stopped at the dirt platform on the east side of the north-bound local track. At the same time a through car was approaching rapidly from the north and a through car approaching from the south, though at the time distant some hundred feet farther than was the south-bound car, the two passing each other near this point. Deceased proceeded, reaching a point between the two through tracks, which are nine and one-half feet distant apart, apparently without seeing the approach of the south-bound through car. She was dressed in black, and, owing to the fact that the track was oiled and black, was not seen by the motorman of this car until he was within seventy-five feet of the point where she was struck by the step of said south-bound car and killed. All the cars had their headlights burning, and the fact that they were at the time but a short distance away approaching the crossing, the north-bound local car having reached the dirt platform where it stopped, thus blocking her way, must have been apparent to one fully acquainted, as she is shown to have been, with the operation of the cars at that point.