Seney v. Pickwick Stages, Northern Division, Inc.

[390]

THE COURT.

The appellant, with her husband and five months’ old child, was a passenger on an autostage operated by the respondent on its line between San Francisco and Portland. The stage overturned and was wrecked. The appellant’s husband and child were killed, and appellant suffered severe injuries. Alleging that the accident was caused by the stage company in the negligent operation of the stage upon which the decedents and she were passengers, the appellant instituted two suits against the Pickwick Stages. One, a suit for damages for the death of her husband, was tried by the court without a jury, and resulted in a judgment in favor of the plaintiff herein. On appeal by the defendant the judgment was affirmed by the district court of appeal in an opinion which fully states the facts.

(Seney

v.

Pickwick Stages,

82 Cal. App. 226, 232 [255 Pac. 279].) A petition by the appellant to have the case heard in this court was denied.

In the second action, the one now here, appellant, again alleging the negligence of the respondent in the operation of the stage, seeks damages for the wrongful death of her minor child, as well as damages arising out of the severe personal injuries sustained by her in the overturning of the stage. The respondent, answering, alleged among other defenses facts on which it contended that the injuries were caused by an unavoidable and inevitable accident. This action was brought on for trial after the trial of the first cause, but before the affirmance of the judgment on appeal. It was also tried by the court, another judge sitting, without a jury. With the exception of the evidence necessary to establish the amount of damages sustained by the plaintiff, the evidence in the second trial was identical with that in the first case—the parties stipulating that the entire record and transcript of the testimony introduced in the first case be introduced and considered in evidence on the trial of the second. The trial court found in favor of the respondent and against the appellant on the issue of negligence. It found that the overturning of the stage was the result of unavoidable accident, and that there was no negligence upon the part of the respondent, its servants, agents or employees. As a consequence of these findings judgment was entered for the stage company. The plaintiff appeals from