Osgood v. Los Angeles Traction Co.

CHIPMAN, C.

This action was brought to recover damages for personal injuries to plaintiff, resulting from a collision between defendant’s (the Los Angeles Traction Com-

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party’s) street-ears, on which plaintiff was a passenger, and a car of the defendant (the Los Angeles Railway Company), a separate and different corporation. Both companies were joined as defendants, hut at the trial plaintiff dismissed the action as to the latter company. Plaintiff had the verdict of the jury, and defendant appeals from the judgment and order denying motion for a new trial.

The following instruction was given at the request of plaintiff, and is claimed by appellant to be error:—

“1. The carrier of passengers is required to exercise the highest degree of care in their transportation, and is responsible for injuries received by them while in the course of transportation which might have been avoided by the exercise of such care. And if you find that while the plaintiff was being carried as a passenger by the defendant, the Los Angeles Traction Company, the ear upon which she was a passenger collided with a car operated by the Los Angeles Railway Company, and that she was thrown from said car and injured, then a presumption of negligence arises which throws upon the defendant, the Los Angeles Traction. Company, the burden of showing that the injury was sustained without any negligence on its part, and in the absence of such evidence your verdict should be in favor of the plaintiff for such sum as will compensate her for the damages sustained.”

Appellant’s objection is, that the jury were told, in effect, that the recited facts, if true, raised a presumption of negligence on the part of appellant; that it shifted the burden of proof to appellant to show that plaintiff’s injuries were sustained without its negligence; that it was error to charge the jury that appellant “is required to exercise the highest degree of care” in the transportation of passengers.

1. Section 2100 of the Civil Code declares: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage,” etc. Webster defines the adjective “utmost” as follows: “Being in the greatest or highest degree.” The noun is defined: “The most that can be; the greatest power, degree, or effort.” The expression “highest degree of care” is no stronger than the statutory requirement “utmost care.” The instruction in this regard was not error. In