Franklin v. Southern California Motor Road Co.

Fox, J. Action for personal injuries. Verdict and judgment for $1,750 in favor of plaintiff, from which defendant appeals, the case coming up on the judgment roll, which includes the evidence embodied in a bill of exceptions.

On the trial it was admitted that the defendant, a corporation, owns and operates a motor-railroad running from San Bernardino to Colton. The proof shows that the road is operated with cars propelled by steam-power.

Two points are presented and insisted on upon the appeal: 1. That the court erred in denying defendant’s motion for a nonsuit; 2. That the evidence is insufficient to justify the verdict.

1. It was shown on behalf of plaintiff that on the morning of June 30, 1888, she entered the car of defendant at Ban Bernardino as a passenger to be transported thence to Colton. Owing to some difficulty in making change, her fare was not paid in advance, but it was paid at Colton, before she attempted to alight from the car. No question is made but that she was a regular passenger, and had all the rights of transportation, care, and protection that is due to any passenger traveling by railroad. The road of defendant enters Colton from the north by way of Conn Street. At the northwest corner of Conn and Front streets, commonly called Thompson’s corner, was situate the office of the company for the town of Colton, and that corner was proved and in argument [67]is conceded to have been the usual stopping-place for the car. The conductor was notified by plaintiff and her escort" of her desire to get off the car at that place. The track of the road continues south along Conn Street, across First Street, and then turns to the west on a strip of land known as the Railroad Reservation, being a strip of open ground lying between First Street and the track of the Southern Pacific Railroad Company. This entire strip of ground is used much as a street, the track of defendant’s road traversing its entire length, and the place being open in common with Front Street and used by the public in driving vehicles over it to and from the Southern Pacific railroad depot. At about one hundred and forty feet west of the west line of Conn Street there is a platform along the southerly side of the track of defendant’s road, where the cars of defendant stop to discharge and receive passengers to and from the Southern Pacific depot. At about two hundred and forty feet west of this platform there is an automatic switch, by means of which the ears of defendant, without stopping, are switched off onto a track running at a distance of between three and four feet north of and parallel with the main track for a distance of about one hundred and eighty feet, where it again connects with the main line, which continues still to the west about ninety feet and enters an engine-house, also belonging to or used by defendant. (These distances are computed from a diagram accompanying the transcript.) Reaching Colton, defendant runs its train onto the side-track, slackens its speed, uncouples without stopping, and runs the engine forward onto the main track, the brakeman stopping the coach on the side-track. Sometimes the engine runs into the engine-house, and sometimes it stops on the main track -without going into the engine-house, but it always comes to a stop, and usually remains some little time oiling up, or the like. It then runs down the main track to the eastern end of the switch, runs up the side