Gumpel v. San Diego Electric Ry. Co.

RICHARDS, J., pro tem.

T

his is an appeal from a judgment in plaintiff’s favor and from an order denying the defendant’s motion for a new trial, in an action for damages for personal injuries sustained hy the plaintiff through being thrown frpm a street-car of the defendant while it was rounding a curve at the corner of First and Spruce Streets, in the city of San Diego.

The appellant assails the plaintiff’s amended complaint as not stating a cause of action. The plaintiff in his said complaint, after averring that he was a passenger for hire upon the defendant’s car, goes on to allege that the said car “proceeded in a northerly direction on its said street-car line, and at that certain point on the comer of First and Spruce Streets, while said car was rounding said curve, and while the same was traveling at a rate of speed of twenty miles per hour

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or thereabouts, plaintiff was thrown from said car and injured as hereinafter set forth.” The plaintiff' then proceeds to allege “that the said defendant company was negligent in the premises, in this ... (b) in rounding said curve at an excessive rate of speed, to wit, twenty miles per hour or thereabouts ; (e) in its failure to provide straps or other facilities for passengers standing to hold on to. . . . That by reason of the negligence aforesaid plaintiff was thrown from said car, as hereinbefore alleged, and struck the ground with great force, and by reason thereof, and by reason of said negligence, received a severe injury,” etc. At the trial the plaintiff further amended his complaint by alleging that as the car ran on to the curve, “it gave a sudden and violent jerk, by reason of which and at which time plaintiff was thrown from said car and injured.” We are of the opinion that the complaint as thus amended sufficiently stated a cause of action.

The appellant next contends that the evidence is insufficient to justify the verdict, in that it fails to show that the accident was the result of any negligence on the part of defendant company. The plaintiff himself testified in relation to the accident; that he had boarded defendant’s car at the comer, of B and Third Streets at some time after 11 o ’clock on the night of his injury. It had been raining; the .ear was very crowded, persons were standing on the front and rear platforms and on the steps of the car; he gained standing room on the rear platform, and, as some of the passengers got off, was able to step over to the door of the ear but could not get inside because of its crowded condition; he was standing leaning against the door when the car came down the steep hill above the curve going very fast, about twenty miles an hour; he had a package under his right arm and was trying to get hold of the piece that runs down from the roof to the floor; the car made a terrible jerk at the curve and threw him off. The plaintiff also testified that he had been accustomed to ride on this car along this portion of its route and knew that the hill and curve were there. There was other testimony supporting plaintiff, to the effect that the car was going at a more rapid rate of speed than usual as it approached the curve. There was also evidence on the part of the defendant contradicting that of the plaintiff as to the rate of speed of the car and as to a jerk at the curve, which it is not necessary to recite in detail, for it is evident that there was suffi