Holloway v. Pasadena & Pacific Railway Co.

THE COURT.

This action was brought by plaintiff to obtain a -judgment against defendant for damages received by plaintiff in falling or being thrown off of one of defendant's electric-cars while said car was in motion.

At the close of the evidence the court directed the jury to return a verdict for the defendant, and upon the verdict thus returned judgment was entered. This appeal is from the judgment and from the order denying plaintiff's motion for a new trial. It appears from the evidence that on the twenty-fifth day of November, 1897, the plaintiff was returning.from Santa

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Monica to Los Angeles on one of defendant’s cars. The car was crowded, and plaintiff was seated on the front platform with his feet resting on the step. As the car ran over a certain cattle-guard near Eosedale Cemetery, on defendant’s track, plaintiff fell or was thrown from the caí and under it, so that one foot was crushed and the other badly injured. Plaintiff claims that his feet were caught by timbers extending upward from the trepch or portion of the cattle-guard under the track. The timbers or steps forming a portion of the cattle-guard were four and a half inches below the step of the car. It is claimed in appellant’s brief that there was substantial evidence of negligence on the part of defendant, and that it was the duty of the court to have allowed the case to go to the jury. In the complaint it is alleged that defendant was negligent in not providing a sufficient number of cars for the transportation of its passengers, in the operation of the cars upon which plaintiff was riding, in the construction of its cattle-guards, and in the construction and maintenance of its" road. The evidence seems to have been principally confined to the allegation as to negligence in the maintenance of the road. The negligence in this respect is claimed to be that defendant’s track had a loose joint or connection of the rails just west of the cattle-guard, so that a car passing over the joint would receive a severe jolt. The testimony on behalf of plaintiff was in substance as follows: The witness Collins testified: “For about two feet under, directly under where the joint of the rails were put each way, the ground was broken, so that when one would stand on the rail you could see the rail bend up and down. The car was going .at a rapid gait, .... I should judge twenty miles an hour; all .at once there was a severe jolt, and I felt Mr. Holloway’s body ■sort of give a lurch back. He was pulled off the car and he went with—well, without any resistance.....In connection with the jolt of the car there seemed to be a lurch sideways and ;a downward movement of the car.”