Bassett v. Los Angeles Traction Co.

SMITH, C. The plaintiff recovered damages against the defendant in the sum of $750 for personal injuries suffered by her while a passenger on one of the defendant’s street railway cars. The car in which she was riding ran off the track at a point on Eighth street in the city of Los Angeles, and she jvas thereby thrown to the floor of the car and suffered the injuries complained of. The derailment, which took place in the daytime, was caused by a small stone or pebble on the outer rail of the trade, which at this point was slightly curved. The principal question considered by the court, as appears from the opinion appended to the appellant’s brief, was as to the rate of speed at which the car was running at the time of the accident. It appeared from the evidence that the general rate of speed used by the defendant was in excess of the statutory limit (Civ. Code, sec. 501) , being over the whole route, including stoppages, in excess of ten miles, and over the section (of nine thousand two hundred and sixteen feet) where the accident occurred in excess of thirteen miles, per hour; and, on the particular day in question, from the terminus to the place of the accident, it was about or in excess of twelve miles an hour. From these facts, taking in consideration stoppages, and reduction of speed in passing curves, the court arrived at the conclusion that the rate of speed at the time of the accident was largely in excess of the statutory limit, and that this constituted negligence in law, and, irrespective of other evidence on the point, [702]rendered the defendant responsible. There was also evidence of opinion pro and con by witnesses as to the actual speed of the car at the time of the accident. But this evidence, being conflicting, and being in fact of little intrinsic value, may, in view of the finding of the court, be disregarded. The conclusion of the court is contested by the appellant’s counsel; and it is argued, in effect, that the evidence was insufficient to show that the rate' of speed at the time of the accident was excessive. But whether they are right in this need not be considered. It is sufficient that the evidence fails to show the contrary. The rule as established in this state is that, “when it is shown that the injury to the passenger was caused by the act of the carrier in operating the instrumentalities employed in his business, there is a presumption of negligence, which throws upon the carrier the burden of showing that the injury was sustained without any negligence on his part”: McCurrie v. Southern Pac. Co., 122 Cal. 561, 55 Pac. 324, and authorities there cited. These authorities also dispose of the contention of the appellant that the evidence was insufficient to show that the excessive rate of speed or other negligence of defendant was the proximate cause of the plaintiff’s injury. It is sufficient that it did not show the contrary.