Poak v. Pacific Electric Railway Co.

SLOSS, J.

Action against a street railway company to recover damages for personal injuries. A jury was waived, and the court gave judgment in favor of the plaintiff for one thousand dollars and costs. The defendant appeals from the judgment, and from an order denying its motion for a new trial.

The allegations of the complaint, with respect to negligence, are that while plaintiff, a passenger on one of defendant’s cars, was in the act of alighting, the car was started without warning or notice to her, throwing her upon the pavement of the street.

The findings are not in exact accord with these averments. In substance, the court found that the car had stopped at a street crossing, which was plaintiff’s destination; that while the car was slowing down to make the stop, the plaintiff arose from her seat in the inclosed or center part of the car, and walked toward the rear platform, from which steps led to the ground. The conductor who was at the front of the car did not look back, and did not see the plaintiff was going out, although there was nothing to obstruct his view in her direction. He gave the starting signal, and the car started, while plaintiff was still a few feet from the exit steps. The motion of the car was gradual and even, “and was not evident to plaintiff’s senses. ” It was dark, and the street pavement was such that it did not “afford easy suggestion, by inspection, of movement above or past it.’’ Believing that the ear was at

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rest, the plaintiff stepped from it after it had run about seventy-five feet, and was thrown violently to the street.

We think, however, that there was no such variance between the facts alleged and those found as would justify a reversal of the judgment. The allegation of the complaint was that the car was negligently started while plaintiff was on the steps, and that she was thereby thrown from the car. The finding was that the ear had already started before plaintiff had reached the steps, and that she was thrown to the pavement in consequence of her endeavoring to alight from the moving car, which she thought to be stationary. But the essential act of negligence was the same under either state of facts. Whether we take the theory of the complaint or that of the findings, the fault of the conductor lay in starting the car after it had been brought to a stop, and before the passenger had time to alight, as she desired to do. Whatever may have been the precise position of the plaintiff at the moment the car started, she was attempting to leave the ear, and was acting in the belief that the ear was and would be kept at rest. The case is not like those in which it has been held that a plaintiff who relies, in his pleading, upon the negligent starting of a ear while he is attempting to alight or get on, cannot recover upon proof of an attempt to alight from or board a moving car.