Massachusetts Bonding & Ins. Co. v. Los Angeles Ry.

OLNEY, J.

—This is an appeal from a judgment for plaintiff in an action for damages sustained by the death of one, Ogan, through the alleged negligence of the defendant. At the time of his death Ogan was employed by a corporation known as Bowles Brothers Company, and in the course of his employment was driving a wagon westerly on Pico Street, in Los Angeles. The defendant operates a two-track electric street railroad on the street, the tracks occupying the middle of the street. Ogan was on the northerly or right-hand side of the street as he was going, and off the tracks. On approaching the intersection of South Union Street he turned to the left or south across the tracks as if to turn into South Union Street. He was driving slowly and apparently turned without any signal of his intention and without looking back. His wagon was struck by one of the defendant’s cars coming up behind him, he was thrown from the wagon, and sustained injuries from which he died. He left a widow and two adult sons. His widow made claim against his employer under the Industrial Compensation Act [Stats. 1913, p. 279], and the claim was allowed and was paid by the plaintiff as the insurance carrier for the employer. The plaintiff then brought the present action as subrogated by the Industrial Compensation Act to any right of action against the defendant for Ogan’s death.

There seems to be.little doubt but that Ogan was guilty of contributory negligence in turning as he did across the

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defendant’s tracks without signal and without looking back. Counsel for the plaintiff do not contend to the contrary. The case was tried for the plaintiff in the lower court chiefly upon the theory that after Ogan had turned and had placed himself in a position of peril, his peril was observed and realized by the motorman of the approaching car in time for him, acting with reasonable promptness under the circumstances, to stop the ear and avoid the accident, and he did not do so. It is upon this theory alone that it is sought here to justify the verdict for the plaintiff. If the evidence be sufficient to sustain the verdict upon this ground, it is at best but little more than sufficient for that purpose. It is not a case of which it can be said that a verdict for the plaintiff is certainly a just one or that a new trial would reasonably result in another such verdict. In other words, it is not a case where it can be said with any certainty that substantial justice has been done, and that the result should therefore not be disturbed because of errors which may have occurred in reaching it. There was one substantial error which did occur and which under these circumstances requires a reversal and new trial.