Wyatt v. Pacific Elec. Ry. Co.

SHAW, J.

This is an action by the heirs at law of Catherine Gray, deceased, to recover damages for her death, which, it is alleged, was caused by the negligence of the defendant. The verdict was in favor of the defendant. The plaintiffs appeal from an order denying their motion for a new trial.

The defendant was operating a line of street-railroad cars in the city of Pasadena. The complaint alleges that the deceased was a passenger on defendant’s car; that the car stopped and she was in the act of stepping from the rear of the car to the street, when it was started backwards by the employees of the defendant with a sudden jerk, whereby she was thrown violently from the car to the ground and suffered injuries which caused her death. The errors assigned relate to the rejection of certain evidence and the giving and refusing of instructions. It is also alleged that the ears usually stopped at Green Street; that she supposed the car she was on would stop there; that she told the conductor she wished to alight there; that it went beyond the crossing and stopped at an unusual place; that the conductor was not in his proper place at the rear and did not assist her to alight. It is important to note, however, that these acts are stated merely by way of inducement, and that it is not alleged or claimed that they caused the fall

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whereby she was injured. The act of starting the car backward, after it had stopped and while she was in the act of alighting, is alleged as the direct and only cause of the injury.

Upon the trial, the plaintiff’s evidence was directed to proof of that act as the cause, and no attempt was made by them to show that the injury was caused in any other manner, or by reason of any other act of negligence. The defendant attempted to rebut this proof solely by evidence to prove that she got off the car before it had stopped and while it was in motion. The defendant then admitted that if the fall occurred as claimed by plaintiffs, from the sudden backward motion of the car, that such act would be negligence and that the defendant would be liable. The plaintiffs, on the other hand, admitted that if she fell by attempting to get off the car before it had stopped and while it was in motion, they had no right to recover. In accordance with these admissions, and upon these averments and proofs, the court, in instruction VIII, asked by the defendant and not assigned as error by the plaintiffs, said to the jury: “I charge you that there is but one issue for you to consider, viz.: Did the car stop and then as Catherine Gray was attempting to alight therefrom, start backward? If so, the defendant is liable. . . . If, on the other hand, said Catherine Gray voluntarily stepped from the said car before the same had stopped and while it was in motion, the plaintiffs cannot recover.” This was a direction to the jury that the act alleged as the cause of the injury,, if proven, was a negligent act, of itself, and sufficient in that respect to justify a recovery. This state of the issues, these admissions of the parties, and this instruction render the errors complained of, for the most part, unimportant and practically immaterial, as will appear from a mere statement of the points.