CONNARD v. PACIFIC ELECTRIC RY CO

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

CONNARD v. PACIFIC ELECTRIC RY. CO. et al.*

Civ. 12198

Decided: May 23, 1939

Laurence B. Martin and Curtis G. Bird, both of Los Angeles, for appellant. Frank Karr, E.E. Morris, C.W. Cornell, and O.O. Collins, all of Los Angeles, for respondents.

In this case the plaintiff was injured while riding on the steps of a street car preparatory to alighting therefrom. There was introduced in evidence ordinance 77,000 of the city of Los Angeles, which contained the following sections: 80.46. “No person shall board or alight from any street car or vehicle while such street car or vehicle is in motion.” 80.47. “No person shall ride upon the fender, steps, or running board of any street car or vehicle.” At the time the plaintiff started down the steps the car was approximately 70 feet from the east side of the open waiting room, moving at a speed of between two and three miles per hour, and the car continued to so move up to the point where plaintiff was thrown off of the steps by a sudden movement of the car. At the conclusion of the evidence the defendants moved the court to direct the jury to return a verdict for the defendants on the ground that the plaintiff was guilty of negligence as a matter of law which contributed proximately to the happening of the accident by violating said sections. This motion was granted; the jury so instructed; the verdict returned; and the judgment entered thereon. It is from this judgment the appeal is taken.

Was the plaintiff guilty of negligence as a matter of law which contributed proximately to the accident by riding upon the steps of a moving car in violation of said ordinance? The question must be answered in the affirmative.

In Schultheiss v. Los Angeles Ry. Corp., 11 Cal.App.2d 525, 527, 54 P.2d 49, 50, the same ordinance was expressly upheld as declaring a rule of conduct, the violation of which precluded recovery. The court said: “ ‘In the absence of the ordinance, the question of whether appellants were negligent in riding on the running board would depend upon whether a person of ordinary prudence would have so ridden under the circumstances then existing, and this would have been a question properly to be left to the jury. (Citing cases.) But the ordinance enacted an absolute standard of conduct and removed from the jury the right to speculate as to what that ideal composite the man of ordinary prudence might or might not have done under similar circumstances. It thereby substituted certainty of conduct for uncertainty. If the violation of the ordinance proximately contributed to their injuries, appellants were guilty of negligence as a matter of law.’ ” See, also, Lorry v. Englander Drayage etc. Co., 108 Cal.App. 116, 291 P. 467.

In the instant case the plaintiff contends that “he proceeded in continuous motion to the rear of the interurban and started down the steps as the car had come almost to a stop. Mr. Connard did not for a moment pause or stand on the step as the street car traveled along,” and there is a legal distinction between standing on the steps for some little distance and a mere transitory use of the steps when the passenger is preparing to alight. This question has already been answered against the plaintiff's contention in the case of Reeves v. Lapinta, 25 Cal.App.2d 680, 78 P.2d 465, 466. In that case the plaintiff appealed from a judgment in favor of defendants predicated upon the granting of defendants' motion for a judgment notwithstanding the verdict of the jury in favor of the plaintiff in an action to recover damages for personal injuries. The plaintiff in the Reeves case was a passenger in an automobile bus operated by the defendants. As the bus approached the intersection where the plaintiff planned to get off, he walked to the front of the bus and stood on the steps of the bus as it traveled along the street, the exit door being open at the time. The bus gave a sudden jerk and plaintiff was thrown to the street and injured. In that case this court said: “As plaintiff violated a provision of the foregoing ordinance in riding upon the step of the automobile bus, she was guilty of negligence per se, and since the accident would not have occurred had plaintiff remained in any other portion of the bus, her negligence was one of the proximate causes of the accident, and therefore she cannot recover for her injury. Steinberger v. California Elec., etc., Co., 176 Cal. 386, 394, 168 P. 570; Leek v. Western Union Tel. Co., [20 Cal.App.2d 374, 66 P.2d 1232], supra; section 1714, Civ.Code. The second question must be answered in the negative. It is the general rule that the issue of contributory negligence is one to be left to the determination of the trier of fact, and that such determination will not be disturbed upon appeal, if there is any substantial evidence to sustain it. This general rule, however, is subject to this well-established exception: If the violation of a statute or ordinance contributes directly to plaintiff's injury, the issue is not one of fact but is an issue of law, and is therefore removed from the consideration of the trier of fact.”

In our view the question is not how long was the plaintiff riding on the steps of the car. The deciding factor is that he was voluntarily riding on the steps in a place of danger and in violation of said ordinance at the time the accident occurred. If the plaintiff was in “continuous motion” in such dangerous place under such circumstances he was the more guilty of negligence.

Finally, the plaintiff contends that in the last analysis he was entitled to an application of the doctrine of last clear chance. The last clear chance doctrine presupposes, among several necessary elements, that as a result of plaintiff's negligence he is in a situation of danger from which he cannot escape by the exercise of ordinary care. Palmer v. Tschudy, 191 Cal. 696, at page 700, 218 P. 36; Darling v. Pacific Electric Ry. Co., 197 Cal. 702, 707, 242 P. 703. In this case the doctrine does not apply because the plaintiff could have by the exercise of the slightest care left the steps and returned to the platform of the car and there be in safety.

Judgment affirmed.

CRAIL, Presiding Justice.

We concur: WOOD, J.; McCOMB, J.