Riggs v. City & County of San Francisco

BRAY, J. Plaintiff's appeal from an adverse judgment upon a jury verdict raises the sole question of whether the giving of a certain erroneous instruction was prejudicial.

The Instruction

“If you find that the plaintiff was not a passenger at the time that she suffered her alleged fall, then the defendant [482]did not owe any duty to the plaintiff, and hence your verdict must be for the defendant, City and County of San Francisco. ’ ’

Obviously, the instruction was erroneous. (Defendant does not contend otherwise. ) Public carriers owe to intending passengers and to the public generally a duty to exercise ordinary care to keep from injuring them. (Connor v. Pacific Greyhound Lines (1951), 104 Cal.App.2d 746 [232 P.2d 500] ; Reilly v. California Street Cable R. R. Co. (1946), 76 Cal.App.2d 620 [173 P.2d 872] ; Sipperly v. San Diego Yellow Cabs, Inc. (1949) (hearing denied by Supreme Court), 89 Cal.App.2d 645 [201 P.2d 543].)

Was the Error Prejudicial ?

To determine this question it is first necessary to consider the evidence. Plaintiff testified that she intended to board defendant’s trolley bus at the bus stop. Arriving there she observed several people awaiting the bus. It stopped about two feet from the curb and was crowded. Some of the passengers alighted from the front of the bus. Plaintiff was the last of the group getting on. She started to enter the right side of the bus door, which opened inwardly. She had grasped the door handle with her right hand. Her left hand was holding her purse and bus fare. Her right foot was on the bottom step and she was placing her left foot on the second step when she heard the operator ask if everybody was on. She hollered “No.” The door then shut, breaking her grip, throwing her backwards so that she fell on the small of her back, striking the curb and injuring her.

One Mower testified that he was also waiting for that bus. It was so crowded that he was undecided whether to get on or not. Two or three persons attempted to get on, the rest staying on the sidewalk. He paid little attention to the other persons so would not remember whether or not he saw plaintiff before the accident. He decided to get on and could get only as far as the first step on the bus. He got on the right hand side of the door. The operator then warned that he was going to close the doors. Mower had to squeeze up onto the next step to clear the door. He could not see the operator. About simultaneously with the closing of the door he heard a scream. Looking around he saw plaintiff lying on the sidewalk and he assisted her to a bench. When asked whether anyone got on behind him, he said, “No, I couldn’t say. That I know, nobody got on behind me.”