Garcia v. San Diego Electric Railway Co.

GRIFFIN, J. Defendant appealed from a judgment, rendered by the trial court sitting without a jury, which was for a claimed injury occurring to plaintiff while she was attempting to board a motor bus operated by the defendant company.

The only questions raised on this appeal are that the evidence is insufficient to justify the finding of negligence on the part of the defendant company and that plaintiff was guilty of contributory negligence as a matter of law.

On the date of the accident, February 10, 1945, plaintiff, during the 5 o’clock rush hour of traffic in the evening, attempted to board the incoming bus at Fifth and E Streets [731]just before it made the “loop” for the return trip. She boarded the bus at this point because she was tired, wanted a seat, and desired to avoid the rush at the plaza, which was the terminal for outbound traffic.

The motorman testified that it was a “pretty common practice” of some passengers to take the inbound bus at that point to avoid the traffic rush at the terminal.

Plaintiff possessed a weekly pass. The fares are collected on the incoming buses when the passengers enter, and on the outgoing buses when the passengers alight. The bus was equipped with folding doors at both front and rear and, by means of a lever, the doors were opened and closed by the driver. It had two inside mirrors, one over the rear door and the other at the right of the driver, and, according to some of the testimony, by looking into the front mirror there was “a clear view” or “a full view” of the “rear door . . . rear door steps” and to the “outside, right by the step,” at the rear.

Defendant asserts that there were oral rules or regulations, promulgated by it, that on incoming buses passengers were to enter by the front door only, and that they may exit at either door; that passengers on outgoing buses could enter at either door, but were to exit only by the front door. No copy of such rule or regulation was introduced in evidence. Apparently it consisted of oral instructions given the driver, and no notice thereof was posted on the bus. Passengers, unacquainted with the rule, could know only by actual knowledge or by being told of it by the driver or other persons.

Plaintiff contends that she had a pass and that although she knew that fares were collected from the passengers at the front end of the bus on incoming trips, she had never been told she should not enter the incoming bus by way of the rear door. She testified that on the date of the accident, the bus stopped on Fifth Street at E; that there were people at the front end trying to get on; that the bus was crowded and people were getting off at the rear end; that other people were trying to and did get on at the rear door ahead of her; that “that is the way they do every time”; that those who get on in the rear hold up their passes and show them to the driver, or step up and pay their fares; that she had gotten on at the rear of the inbound bus on several other occasions, —she did not remember the number. (There is some conflict between her testimony in her deposition and her testimony at