Johnsen v. Oakland, San Leandro & Haywards Electric Railway

GAROUTTE, J.

PlaintifE has recovered damages for personal injuries received while a passenger upon one of defendant’s electric street-cars. The car was going at an unusual and unlawful rate of speed, and while upon a curve, a flange of the car wheel broke, the car left the track, and plaintiff was precipitated to the ground through a window of the car, to his great injury. 'This appeal of defendant has but little merit.

It is first contended that the excessive speed of the car was not the proximate cause of the accident. This claim is based upon the testimony of defendant’s witnesses to the effect that a perfect wheel of the kind here in use would safely support a similar car running at a speed much greater than the speed of this car at the time of the accident. This may be conceded, and still, under the facts of this case, it might well be said by the jury that the excessive and unlawful rate of speed of the car was the proximate cause of the injury. Tire jury may well have been justified in saying that after the flange of the wheel broke the car would not have left the track if the speed had not been excessive; or the jury may have gone a step farther and declared that, even though the car • would have left the track, still the plaintiff would not have been injured if the car had been traveling at an ordinary and lawful rate of speed. It appears that this plaintiff was thrown across the car against and through the window on the opposite side of the car from where he was sitting. The jury may well have said from the evidence that this would not have happened if the car had been traveling at a proper and lawful rate of speed, notwithstanding the wheel may have broken and the car left the track. If the wheel may have broken and the car left the track, and still the plaintiff not have been injured except for the extraordinary and unusual rate of speed of the car, then it may be well said that the excessive rate of speed was the proximate cause of the injury and not the breaking of the wheel. While the excessive and unlawful rate of speed shows negligence upon the part of defendant, of course that fact, of itself, would not be sufficient ,to indicate such speed to be the proximate cause of. the injury,

[610]

but, as we have shown, there are other facts which, taken in connection with the rate of speed, would justify a jury in declaring that the proximate cause of injury was the excessive rate of speed. Appellant in this particular relies upon the late case of