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District Court of Appeal, Second District, Division 1, California.


Civ. 11568

Decided: October 10, 1938

John F. Poole and H.E. Gleason, both of Los Angeles, for appellants. Gibson, Dunn & Crutcher, of Los Angeles (Penn Cummings, of Los Angeles, of counsel), for respondent.

This is an appeal by plaintiffs from the judgment, in an action to recover damages for personal injuries alleged to have been sustained by plaintiff Katherine M. Gish, while riding on a street car owned and operated by the defendant. The complaint alleged and plaintiff sought to prove that the street car upon which the plaintiff was riding as a passenger on July 30, 1936, stopped suddenly and with a “tremendous jerk” which threw plaintiff against a wooden upright post at the end of the seat. This, as plaintiff testified, occurred at Third street, as she was about to take her seat on the street car. Plaintiff informed the conductor of the accident when the car reached Sixth street, three blocks farther down the street. At this time and place the conductor inquired of the other passengers if anyone had witnessed the accident, to which inquiry there was no response. Plaintiff left the car unassisted and walked home, a distance of about half a block. The alleged accident occurred on Thursday and no services of a physician were sought by plaintiff until the following Tuesday. Thereafter plaintiff testified that she engaged the services of six different doctors. At the time of the accident plaintiff was 58 years old.

It developed on cross-examination that in 1935, about a year before the incident herein described, plaintiff received the sum of $1,000 from the street car company for injuries alleged to have been sustained by her due to the sudden stopping of a street car.

The within cause was tried before a jury and at the close of the evidence defendant moved the court to direct the jury to return a verdict in its favor, which motion was granted.

Appellant contends that the court erred in granting the motion, and in connection therewith calls attention to the rule that the power of the court to grant a motion for a directed verdict is very limited and that the same rule applies to such a motion as applies to a motion for a nonsuit, citing Estate of Caspar, 172 Cal. 147, 155 P. 631, and Hunt v. United Bank & Trust Co., 210 Cal. 108, 291 P. 184. The granting of the motion for a directed verdict herein does no violence to the rule enunciated in the cited cases, for it is obvious from a review of the evidence that the implied conclusion of the trial judge, namely, that plaintiff failed to prove any negligence on the part of defendant as the proximate cause of the alleged injury, is amply supported by the record.

For the foregoing reasons the judgment is affirmed.

DORAN, Justice.

We concur: YORK, P.J.; WHITE, J.

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