Fraser v. California Street Cable Railroad
Before: Gray
Synopsis
Action for Injury — Contributory Negligence — Riding on Foot board of Street-Car — Evidence — Support of Verdict.—In an action to recover damages for an injury sustained by the plaintiff from collision with a vehicle standing a foot distant from the hody of a ear upon the footboard of which he was riding, where the verdict was for the defendant, and the evidence showed that the plaintiff might have taken a more secure position, and might have escaped injury by holding hi^ body well within the lines of the car, and keeping a lookout to avoid the collision, it cannot be said as matter of law that the jury were not warranted in finding from the evidence that plaintiff’s injury was the proximate result of his own negligence.
Id.—Avoidance of Injury by Employees—Rule Inapplicable—Rights of Employees—Where there was no evidence to show that the employees of the street-ear company had any notice that plaintiff was in a dangerous position, or was conducting himself in a dangerous manner, the rule that they must use the last clear opportunity to avoid the injury is inapplicable; and they had the right to assume that persons riding where the plaintiff rode would use reasonable care, and not allow themselves to come in collision with objects no nearer than a foot from the body of the car.
Id.—Harmless Exclusion ot Evidence as to Injury.—The verdict having been rendered for the defendant, based on the ground of the contributory negligence of the plaintiff, the exclusion of evidence of an X-ray photograph bearing upon the injury, and of evidence bearing upon the permanence of the injury, is harmless to the plaintiff.
GRAY, C.
Action for injury to the person of plaintiff through the negligence of defendant while the former was a passenger on a street-ear of the latter. The defendant had a verdict and judgment in its favor, and the plaintiff appeals from an order denying him a new trial.
Appellant’s first and principal contention is, that the verdict is contrary to evidence because the evidence shows that the defendant’s negligence was the proximate cause of plaintiff’s injury. Without substantial conflict, the evidence shows that the plaintiff as a passenger boarded defendant’s car going west on California Street at the northwest corner of .California and Sansome streets. The car at that time was well loaded with passengers, the seats being all taken, with three or four standing inside the middle or inclosed section of the car, and one standing on the rear platform at the front of the rear open section, and with his back against the right-hand rear window of the closed or middle section. Plaintiff, a young man, twenty years of age, with some two years’ experience in riding on these same cars, took a standing position
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on the right-hand rear “foot or running board just above the ground that passengers use in getting on and off the cars,” holding to the stanchion with one or both hands. At this time there were no persons standing on the platforms or footboards of the front open section, and plaintiff seems to have been the only one standing on the footboards of the rear open section. There was but one person standing on the platforms of the rear open section of the car, so far as the evidence discloses. It is apparent that the plaintiff was not forced to ride on the footboard of the car, but might have taken a more secure position thereon, if he had seen fit to do so. He rode in this position across Leidesdorff Street, a distance altogether of one short block, when his body came in collision with the front footboard, otherwise called the dashboard, of a heavy wagon that was standing stationary, backed into the curb, “not exactly square,” on the north side of California Street, just west of Leidesdorff, the horses hitched thereto turned west up California, Street at right angles with the wagon. The motorman saw this wagon just weJt of Sansome Street and approached it at half-speed. He passed it without any part of it coming in contact with the car, and estimates that the dashboard or footboard in question came no nearer than twelve or fourteen inches from the closed section of the car. Another witness familiar with the measurements of the car says that the footboard on which plaintiff stood extends but four inches beyond the outside line of the inclosed part of the car. It appears then that the footboard or dashboard of the wagon which injured the plaintiff must have been at least eight inches outside of the outer edge of the footboard upon which plaintiff stood when injured. If the jury believed this evidence,—and we- must in support of the verdict presume that they did believe it,—they were probably satisfied that the defendant negligently failed to keep a lookout in front and negligently swung his body further out from the stanchion than was necessary or compatible with safety. We do not mean to say that it is negligence per se for a passenger to ride where the plaintiff rode; but we do think that common prudence required that he should while riding there either keep his body well within the lines of the car, or if he was disposed to swing out beyond those lines he should have kept a diligent lookout to avoid coming in contact with other
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