O'Neill v. City of San Francisco

THE COURT.—

This is an action for damages for personal injuries. It is admitted that defendant operates an electric street railway in San Francisco and that on the day in question plaintiff was a passenger for hire on one of the street-ears of defendant. It is also admitted that the streetcar in question stopped to discharge passengers, including plaintiff, at the intersection of Van Ness Avenue and Green Street. Plaintiff contends that while the plaintiff was in the act of alighting from the street-car and before she reached the street the street-car started up, causing plaintiff to fall to the street, receiving the injuries of which complaint is made. The defendant contends and introduced evidence to show that plaintiff had alighted from the car and had safely reached the street, when she was menaced by a passing automobile and then, in order to protect herself, she grabbed hold of the rear stanchion or grab-handle of the street-car just after the street-car started up. This grab-handle, defendant’s evidence tended to show, was five or six feet from the spot at which plaintiff had alighted. On the issues thus presented the case went to trial before the court and jury, and after a full trial the jury rendered a verdict in favor of the defendant.

Appellant makes no contention that the evidence does not support the verdict, but appeals solely on asserted error of the trial court in the giving and the refusing to give certain instructions.

The trial judge, in effect, instructed the jury that in such case, "there is no legal presumption of negligence but negligence is a fact which like other facts must be proved”; and also instructed the jury that it was necessary "for plaintiff to prove that the accident and resulting injuries were proximately due to negligence of defendant and his servant.”

Plaintiff contends that the doctrine of

res ipsa loquitur

applies to the above facts, and that even though

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the jury was properly instructed in regard to that doctrine, the above two instructions created such a conflict that the case must be reversed. We cannot agree with appellant in this regard. In

Kahn

v.