Westwater v. Southern Pacific Co.

WARD, J.—An appeal from a judgment rendered in favor of plaintiff minor, by his guardian ad litem, against defendants Southern Pacific Company, a corporation, and Dorothy Miles, taken by the corporation alone.

The facts of the case are as follows: Miss Miles, while on a trip to Alaska, entrusted the care of her Scotch terrier dog to Miss Grover. Having occasion to make a trip to Berkeley, Miss Grover purchased a ticket therefor at the San Francisco ticket office of defendant company. She was accompanied by the dog, wearing a collar to which a leash was attached. She testified that on depositing the ticket at the entrance gate, she inquired of the gateman, “Is it all right for me to take the dog across?” to which the gateman replied: “Why, certainly.” The animal weighed about seventeen pounds, appeared to be well-mannered and had no known vicious tendencies. As she boarded the train, holding the dog under her arm, she" passed the conductor, who was standing on the back platform. Miss Grover took a seat on the right-hand side of the car and placed the dog on the seat beside her, next to the window. She sat with her arm over the animal and held the leash in her hand. The minor, David Westwater, accompanied by his mother, was a passenger and occupied the seat next to the window, directly in front of the dog. The minor raised himself on the seat, turned around to speak to Miss Grover or to look at the dog, and was immediately bitten.

The court found that Miss Grover was not careless or negligent and that the dog “without provocation on the part of plaintiff and without warning to plaintiff, leaped at said plaintiff and bit plaintiff in the nose and thereby caused plaintiff to be injured”; that the injuries were sustained by reason'of the negligence of defendant corporation and as a direct and proximate result thereof.

[371]A carrier of persons for reward is not an insurer of the absolute safety of passengers (Champagne v. Hamburger & Sons, 169 Cal. 683 [147 Pac. 954]), and unless called upon to explain the cause of the accident, is not responsible upon the mere proof of the happening thereof. Nevertheless, utmost care and diligence must be used for the passengers’ carriage; everything necessary for that purpose must be provided and the carrier must exercise to that end a reasonable degree of skill. (Civ. Code, sec. 2100.) Unless by statutory provision negligence may be presumed, it is a question of fact. It is provided by statute that the owner of a dog which shall bite any person while such person is on or in a public place, or lawfully on or in a private place (Stats. 1931, p. 1095; 1 Deering’s Gen. Laws (1937), p. 166) shall be liable for damages suffered. No doubt this is the theory adopted in holding the owner liable in this case. Our attention has not been called, however, to any statutory provision forbidding common carriers to transport dogs; hence, as to the carrier, the question before us resolves itself into whether or not the defendant corporation discharged toward plaintiff its legal duty; in other words, did the defendant corporation use the utmost care and diligence for his safe carriage.