McINTOSH v. LOS ANGELES RY CORPORATION

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District Court of Appeal, Second District, Division 2, California.

McINTOSH v. LOS ANGELES RY. CORPORATION.*

Civ. 10590.

Decided: December 11, 1935

Gibson, Dunn & Crutcher, by Philip C. Sterry, all of Los Angeles, for appellant. Meserve, Mumper, Hughes & Robertson, by Baldwin Robertson, all of Los Angeles, for respondent.

This is an appeal by defendant from a judgment in favor of plaintiff after a trial before a jury.

Viewing the evidence most favorable to the plaintiff (Ah Gett v. Carr, 3 Cal.App. 47, 48, 84 P. 458), the facts in the instant case are:

Plaintiff, a passenger on a street car operated by defendant, was, while standing in the aisle preparatory to leaving the car, thrown through a window, so that his body from his hips was hanging head down out of the car. The accident was caused by the lurching of the car as it proceeded around a sharp curve.

The sole question necessary for us to determine on this appeal is: Was the evidence sufficient to sustain the implied finding of the jury that the defendant was negligent in the operation of its street car?

It is settled law that a mere injury to a passenger does not place upon the carrier the duty of explanation, but the establishment of such injury, coupled with proof of coincident and causal collision, derailment, or other unusual happenings to the car, does cast upon the carrier the burden of exculpation. Rystinki v. Central California Traction Co., 175 Cal. 336, 344, 165 P. 952.

In the instant case plaintiff endeavors to bring himself within this rule by claiming there was substantial evidence that:

First: The street car was being operated at an unusual rate of speed.

Second: The street car lurched when it struck the curve.

Plaintiff's first contention is based solely upon his own evidence. He testified: “He (referring to defendant's street car) was going at a much greater speed than usual.”

Such testimony is insufficient to support a finding of fact that the street car was being operated at an unusual rate of speed.

In Diamond v. Weyerhaeuser, 178 Cal. 540, 543, 174 P. 38, 39, Mr. Justice Sloss says: “The plaintiff testified that the machine was coming ‘very fast’; another witness, that its speed was decreasing before it reached the milk wagon, but that it was still going ‘at a good speed.’ The only other witness who testified for plaintiff on the subject said that it looked to him as if the automobile ‘was going pretty fast.’ These statements are entirely too uncertain to serve as a basis for a finding that the speed was over 20 miles an hour, or that it was in excess of the maximum rate which would be dictated by the demands of ordinary prudence. Such expressions as ‘very fast,’ ‘pretty fast,’ and the like are merely relative, and their meaning and effect must depend upon the unknown factor of the witness' personal views regarding standards of speed.”

Plaintiff's second contention is predicated likewise solely on his testimony, to wit: “When the body of the car struck that curve it simply lurched.”

This evidence is wholly insufficient to support a finding of fact that the lurch was unusual. It falls clearly within the rule announced in Diamond v. Weyerhaeuser, supra.

In Anderson v. Boston Elevated Ry. Co., 220 Mass. 28, 107 N.E. 376, 377, a Massachusetts case, in which the facts were analogous to those in the instant case, plaintiff was injured by being thrown through a car window as it rounded a curve and characterized the motion of the car as “violent,” “awful,” and “so violent that it seemed ‘as though the car was going to tip right over.”’ In reversing the judgment in favor of the plaintiff and ordering a judgment entered for the defendant, Mr. Justice Crosby, speaking for the court, said, 220 Mass. 28, 107 N.E. 376:

“The plaintiff contends that her description of the jerk of the car and the effect which it had upon her was sufficient evidence to warrant the jury in finding that the motorman was negligent in the operation of the car as it passed around the curve in coming into the station. * * * The case therefore must stand or fall solely upon the plaintiff's testimony.

“It is a matter of common learning that electric cars cannot be run without occasional jerks and jolts, and for injuries to passengers arising from the ordinary sway or lurch and jerk of a car there is no remedy because there is no evidence of negligence; and this is true no matter how vivid, vigorous and vehement the adjectives employed may be in describing the movement of the car.”

In Delaney v. Buffalo, R. & P. Ry. Co., 266 Pa. 122, 109 A. 605, at page 606, Mr. Justice Walling, speaking for the Supreme Court of Pennsylvania in a case where a passenger on a train was injured when a sudden lurch caused her to fall upon her knees in the aisle and strike her head against the opposite side of the car, causing injury, says: “An injury to a passenger raises no presumption against the carrier, unless the accident is connected in some way with the means of transportation. [Citing cases.] And the situation is not changed by the fact that plaintiff's evidence describes the lurch or jolt as ‘terrific.’ That a passenger fell from her chair from the mere movement of the car of a fast train does not make out a prima facie case of negligence, and her mere characterization of the movement as a terrific or violent lurch adds nothing from which negligence can be legitimately inferred. [Citing cases.] There is no presumption of negligence arising from the use of the words ‘sudden jerk.”’

From the foregoing, it follows that there was not any substantial evidence upon which the jury could lawfully predicate negligence upon the part of defendant.

The judgment is reversed.

I dissent.

The case of Diamond v. Weyerhaeuser, cited in the majority opinion, has little, if any, bearing upon the issues of the case before us. The two decisions from other jurisdictions are not controlling for the reason that they are opposed to the California decisions. Rystinki v. Central California Traction Co., 175 Cal. 336, 165 P. 952; Lynch v. Market Street Ry. Co., 130 Cal.App. 433, 19 P.(2d) 1009; Karsey v. City and County of San Francisco, 130 Cal.App. 655, 20 P.(2d) 751.

McCOMB, Justice pro tem.

I concur: CRAIL, P. J.