Wardlaw v. California Railway Co.

SEARLS, C. This action is brought to recover damages

from the defendant, a corporation, and a carrier of passengers by railroad, for personal injuries sustained by the infant plaintiff, while boarding defendant’s ear, at Fruitvale, in the county of Alameda. At the trial, and upon the close of the evidence on the part of plaintiff, counsel for defendant moved for a nonsuit, upon the ground that the evidence of the plaintiff showed that he, the said plaintiff, was guilty of contributory negligence. The motion was granted by the court, and judgment entered in favor of defendant for costs. Plaintiff excepted in due form, and prosecutes this appeal from the judgment of nonsuit, and assigns the granting of the motion for nonsuit as error.

It was admitted at the trial that plaintiff was, at the date of the accident, of the age of about eighteen years, and that James Wardlaw had been duly appointed his guardian. Also, that the defendant corporation owned and operated a steam railroad in the county of Alameda, together with engines, ears, etc., running between the villages of Fruityale and Laundry Farm in said county, and was a common carrier of passengers for hire over said railroad. The testimony of plaintiff was to the effect that on Sunday, May 21, 1893, he purchased a [227]ticket in San Francisco for Laundry Farm, and in company with a party of young friends rode on the Southern Pacific cars to Fruitvale, at which point the road of defendant begins. The cars of defendant were what plaintiff terms picnic cars, and were platform cars, with a railing around them and seats extending across. The parties were going to a private picnic and approached the rear end of the train, as we must infer from the fact that the engine was at the other end, but probably not attached to the train. Upon approaching the train, which stood in front of defendant’s depot, plaintiff passed forward upon the right-hand side of the cars, looking forward, and, seeing no steps, he attempted to climb on a car at the end where it was attached to another car, by putting his foot upon a brakebeam, his hands on the platform, and swinging himself up, so that he placed his other foot upon the bumper just in time to have it caught between the bumpers and crushed as the engine started the cars back and pressed them together, probably in coupling onto the train. Plaintiff heard no bell, whistle or other signal from the engine. After his injury, plaintiff saw that, on the other or left-hand side of the car (on the depot side) there was an opening in the railing of the car, and steps by which to ascend to it. On cross-examination plaintiff said, among other things: “I cannot handle myself as well as a boy who has the full use of his limbs. I never have been able to. I have to be careful. I cannot get around as easily as other boys, and know that perfectly well. This is only on account of being fleshy Am not injured in any other way.” There were several other witnesses on the part of the plaintiff, from whose testimony it is to be inferred that the Laundry Farm train came in about the time plaintiff and his party of about thirty persons arrived at the station. The train came down the track with the engine in advance, which engine was switched to .a sidetrack and run back to be attached to the other end of the train, at which time plaintiff and some three others of the party attempted to board the car on the right-hand side, and between the ends of two cars. The witnesses concur in stating: (1) That they heard no signal from the engine as it backed down and coupled on the train. (2) That the depot was on the left-hand side, and that there were steps and facilities for boarding the cars on that side, and none on the other, and that ample time was given for passengers to board the train. (3) The cars were