Williams v. Pacific Electric Railway Co.

MELVIN, J.

Plaintiff sued for and obtained a judgment against the corporation here appellant in the sum of twelve thousand five hundred dollars as damagesyfor personal injuries. The defendant appeals from the judgment and from an order denying its motion for a new trial.

Plaintiff was a laborer engaged in shoveling gravel from a car on a side-track connected with the main line of defendant’s railroad. Two other men were working with him in the car which was of the kind known as a “gondola,” being open

[236]

at the top and having a floor sloping toward the sides in both directions from a central board which was two feet two inches from the upper edge of the car. At its deepest part the distance was four feet three inches from the floor to the upper edge of the car. Within the body of the ear were a number of rods or braces connecting the sides with the sloping floor. The testimony regarding the amount of gravel in the ear at the time of the accident given by Bowman, one of the men working with plaintiff, was that the gravel had been unloaded to a point about a foot and a half or two feet from the bottom of the ear, and that Williams was standing on the gravel, and “not on the Y-shaped center of the car.” Lopez, the other co-laborer of plaintiff, corroborates this statement, adding that the braces were uncovered. When the freight-cars were backed down the siding and the gondola was struck, plaintiff was thrown to the ground and his left arm was so crushed by the ear-wheels passing over it that amputation was necessary.

Williams had eaten a part of his luncheon early in the day, and had left the remaining portion of it near a corner of that end of the car which was afterward struck by the oncoming freight-ear. He had no recollection, as he testified, of the events immediately preceding the accident, but both of his companions agreed that a warning was shouted by Lopez before the collision, and it was the theory of the defendant’s counsel that plaintiff had been guilty of contributory negligence by moving from a place of comparative safety to the end of the car for the purpose of preventing his luncheon from being knocked to the ground. Bowman had sufficient knowledge of the approaching cars to brace himself by holding on to the edge of the gondola. He escaped injury. Lopez grasped one of the braces in the ear and received only trifling injury. Lopez insisted that he merely cried “Look out!” but Bowman, upon cross-examination, said that the warning may have been, “Look out for your lunch!” and that version agreed with the signed statement given by him to defendant’s agents immediately after plaintiff was injured. Bowman also stated that plaintiff was working just before the accident at a place where gravel could be thrown conveniently into a wagon which was beside the track near the middle of the gondola. The gondola was thirty-four feet long, and in his written statement Bowman had estimated that Williams was then ten feet from the end of the ear from which he subsequently