Stephenson v. Southern Pacific Co.

De Haven, J. The action is to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint alleges that the plaintiff was a passenger upon a street-car in the city of Los Angeles, the track of which crosses that of defendant at or near its depot, and that upon the occasion of the injury the street-car approached the crossing, and stopped long enough to ascertain that a locomotive-engine on the track of defendant, and within about twenty-five feet of the crossing, was not in motion, and then proceeded to cross the track; that when the street-car was about to cross the track of defendant, the engineer in charge of defendant’s engine negligently and carelessly gave his engine steam, and commenced to back the said locomotive upon the track toward and upon the street-car in which plaintiff was riding, and that plaintiff, being in imminent danger of injury from the anticipated collision, jumped from the street-car, as did other passengers, and was injured.

The answer contained a sufficient denial of any negligence upon the part of defendant and of its employees, and also charged that plaintiff was guilty of contributory negligence.

The trial was by jury, and a verdict rendered in favor of plaintiff for five thousand dollars. The defendant appeals.

The evidence tended to show that the street-car was stopped before attempting to cross the track of defendant, as alleged in the complaint; that the locomotive was not then in motion, but proceeded to back down toward the crossing as the street-car was crossing the track, but did not in fact come in collision with the street-car. The locomotive-engine was upon the depot grounds for the purpose of being used in switching cars.

[561]The court, at the request of plaintiff, gave to the jury the following, among other instructions: —

“ If the jury believe from the evidence that the defendant’s engineer, with intent to frighten and scare the passengers riding upon said street-car upon which plaintiff was a passenger, while the said horse-car was in close proximity on the track of said defendant, unnecessarily and wantonly let the engine take steam, an d started said locomotive to move towards and upon said street-car, with the intention thereby to frighten the said passengers, of which plaintiff was one, and did thereby frighten said passengers and plaintiff, so that she, seeing said engine, and believing, and having reasonable cause to believe, that the same was about to collide with said street-car, in order to save herself from accident jumped off of said car, and thereby the plaintiff was injured, then the defendant is guilty of negligence, and the jury should find for the plaintiff.”