Harrison v. Sutter Street Railway Co.

GAROUTTE, J.

This is an action for damages for personal injuries, brought by the administratrix of the estate of John B. Harrison, deceased. Harrison was a passenger upon a street

[550]

car of defendant the Sutter Street Railway Company. As the car was passing westward upon Pacific Avenue, a collision occurred between the car and a brewery wagon belonging to the National Brewing Company, and, as a result of the collision," Harrison, the passenger, was killed. The street-car company and the brewing company are made defendants in the action. Judgment went in their favor, and plaintiff prosecutes this appeal.

A pure question of law is presented by the record, and it ■ arises upon the giving of certain instructions by the court, and its refusal to give others. Counsel for plaintiff, in his brief, thus declares the legal proposition involved upon the appeal: “ Of the three instructions asked by the plaintiff and refused by the court, one point was sought to be impressed upon the jury,—namely, that when the plaintiff had shown the fact that the deceased was a passenger upon the car of the defendant railway company; that an accident had occurred; that the deceased had suffered injury thereby, and the extent thereof, all without fault on his part, and that both defendants were involved in the accident,—a presumption of negligence arose as against them both, which it was incumbent upon them to rebut. The instructions by the court at the request of the defendants are directly opposed to this view, and the determination of the propriety of the action of the court in refusing to give the instructions asked by the plaintiff, and giving those asked by the defendants, is the principal matter involved in this appeal.”

The general principle of law illustrated by the declaration

res ipsa loquitur

is not gainsaid by .respondents, but the application of that principle to the facts of this case is denied. This general principle is fully considered in

Judson

v.

Giant Powder Go.,

107 Cal. 549,