Connard v. Pacific Electric Railway Co.

SHENK, J. This action was brought to recover damages for personal injuries received by the plaintiff while preparing to alight from a street car. Judgment was entered for the defendants on a directed verdict. Plaintiff has appealed. He contends that the trial court erred in taking the case from the jury.

The basis for the directed verdict was the court’s conclusion that plaintiff had violated ordinance No. 77,000 of the city of Los Angeles; that such violation was negligence per se; that it contributed directly to the injury; and that it therefore constituted contributory negligence as a matter of law. (Reeves v. Lapinta, 25 Cal. App. (2d) 680 [78 Pac. (2d) 465], and cases there cited.)

If the evidence had conclusively established a violation of the ordinance by the plaintiff, the above reasoning would have justified the entry of the judgment appealed from. The evidence bearing on the point, however, was in conflict; it raised a substantial issue of fact, which should have been submitted to the jury.

The pertinent sections of the ordinance read: Section 80.46. “No person shall board or alight from any street car or Vehicle while such street car or vehicle is in motion.” Section 80.47. “No person shall ride upon the fender, steps, or running board of any street car or vehicle.” The evidence leaves no doubt that the plaintiff, when injured, was using the steps of the street car preparatory to alighting therefrom, and that the street ear had not quite come to a complete stop. It leaves considerable doubt, however, as to whether the plaintiff was riding on the steps within the meaning of that term as used in the ordinance, and as to whether he attempted to alight when the ear was still in motion. These were questions of fact for the jury, and it was erroneous for the trial court to direct a verdict. (Estate of Lances, 216 Cal. 397 [14 Pac. (2d) 768]; Gish v. Los Angeles Railway, 13 Cal. (2d) 570 [90 Pac. (2d) 792], and cases there cited.)

[377]The accident occurred on February 25, 1937, about 7 P. M., when the plaintiff was returning in his customary manner by interurban street car from his place of employment to his home near Barham Way station. He testified that after the car left Holly Crest station, and as it was approaching the next stop, Barham Way, he got up from his seat in the middle of the ear, and started toward the rear, passing the conductor in the aisle. The conductor asked him if he wanted to get off at Barham Way. He replied that he did, whereupon the conductor reached up and pulled the signal cord. He then heard the usual “toots” with which the motorman responded to a stop signal. He proceeded rearward, and the car began to slow down. It had slowed to two or three miles an hour when he reached the back, and was continuing to decrease speed. It had already entered the area of the long dirt station platform at Barham Way. He recognized this from the click of the car wheels going over a switch located between the end of the platform and a waiting bench. Believing that the car would come to a full stop, he started down the steps. There were three, including the car platform. As he reached the second, or middle step, while at the same time grasping the hand rod or stanchion, the ear approached a standstill. It did not come to a full stop, however, but suddenly gave a jerk, or lurch, followed by a rapid forward movement. This unexpected occurrence threw plaintiff off the steps, broke his handhold, and cast him onto the station platform. The injuries which he sustained were most severe. The car continued on until, in response to an emergency signal given by the conductor, it was finally halted at a point across the Street intersection beyond the station.