Housel v. Pacific Electric Railway Co.

[729]

WILBUR, J.

The plaintiffs were injured in a collision between a runaway hay wagon and the street-car of the defendant corporation upon which they were riding as passengers. The eases were tried before the court without a jury; judgment was rendered for the plaintiff in each case, and the matter is before us on appeal from the judgments and orders denying motions for a new trial. These cases have been before this court on a previous appeal and the facts are stated at some length in the opinion on that appeal.

(Housel

v.

Pacific Electric Ry. Co.,

167 Cal. 245, [Ann. Cas. 1915C, 665, 51 L. E. A. (N. S.) 1105, 139 Pac. 73]; see, also,

Thomson

v.

Pacific Electric Ry. Co.,

167 Cal. 795, [139 Pac. 75].)

The car upon which the plaintiffs were riding was proceeding easterly along Temple Street, Los Angeles, up a nine per cent grade from Fremont Street. A wagon loaded with nine thousand six hundred pounds of baled hay was coming down the hill on the left-hand side of the street. The brake of the wagon broke, the horses ran downhill, the wheel horse on the left-hand side fell, the wagon then swerved to the left toward the street-car track upon which defendant’s ear was approaching, a collision occurred, and plaintiffs were thrown from the car and injured. As we held upon the former appeal, there was, under the circumstances, a

prima facie

presumption of negligence against the carrier. The findings state in great detail the evidentiary facts. It is argued that certain of these “findings” are not supported by the evidence ; that if we consider what the court did find with reference to certain of the evidentiary facts as true, and hold, as appellant claims we should, that other findings of the trial court were erroneous because unsupported by tthe evidence, then the case must be reversed. The ultimate question in the case was as to whether or not the defendant was negligent. The court found that it was negligent. If specific findings made by the court were in conflict with that general finding, the question would be different from that presented here. The defendant’s motorneer, confronted with the fact that he was compelled to meet a runaway team with nearly five tons of hay, on a steep grade, could have done one of three things: go ahead, stand still, or retreat downhill. He decided to go ahead. The trial court held that if he had not gone ahead, but had stood still, plaintiffs would have escaped