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


Civ. 14841.

Decided: October 05, 1945

Gibson, Dunn & Crutcher, E. H. Chapman, and Philip C. Sterry, all of Los Angeles, for appellant. Tripp, Callaway, Sampson & Dryden, Walter L. Gordon, Jr., and Lowell L. Dryden, all of Los Angeles, for respondent Cecil Combs.

This appeal is from a judgment in favor of plaintiff, entered upon the verdict of the jury in an action by plaintiff against defendants, Los Angeles Railway Corporation and Joseph Commodore, involving a collision between a street car operated by defendant Railway Corporation and an automobile operated by defendant Commodore, as a result of which plaintiff sustained personal injuries. By his complaint, plaintiff alleged that, on October 23, 1943, he was a passenger upon a street car owned and operated by defendant Railway Corporation; that, because of the negligent manner in which said street car and the automobile of defendant Commodore were operated, they came into collision with each other, thereby injuring plaintiff. By their respective answers, both defendants denied the negligence charged against them and, as a separate defense, pleaded contributory negligence upon the part of plaintiff.

The cause proceeded to trial before a jury and, at the conclusion of plaintiff's case, both defendants challenged the sufficiency of the evidence by motion for a nonsuit based on the claim that the evidence conclusively established that, as a matter of law, plaintiff was guilty of contributory negligence. This motion was denied. Upon the same grounds, at the close of the trial, each defendant moved the court for a directed verdict, which motions were likewise denied.

The jury returned its verdict in favor of plaintiff and defendant Commodore and against defendant Railway Corporation. The last named defendant thereupon moved the court for a judgment non obstante veredicto, basing such motion upon each and all of the grounds stated in the motion for nonsuit and directed verdict. This motion was also denied.

Thereafter, defendant Railway Corporation, being unsuccessful in its motion for a new trial, prosecutes this appeal from the judgment entered upon the verdict and from the order denying its motion for judgment notwithstanding the verdict.

Viewing the evidence in the light most favorable to plaintiff, as we must following a verdict in his favor, the facts of the case may be thus epitomized: On the afternoon in question, at about five o'clock, plaintiff, together with several other prospective passengers, was waiting for a street car at 32nd Street and a private right-of-way maintained by defendant Railway Corporation. Upon arrival of the street car at the 32nd Street loading zone, the waiting pedestrians boarded the same with plaintiff getting on last. After the other people who were waiting had boarded the car, plaintiff being last in the waiting line proceeded up to the second step of the car when it started up. From this position, plaintiff paid his fare, received a transfer, and then endeavored to make his way up and into the car, but discovered that it was so crowded with passengers that it was impossible for him to do so. As to the crowded condition of the street car upon its arrival at 32nd Street, plaintiff, when testifying as a witness, was asked: ‘When the street car arrived at 32nd Street did you make any observation as to how many people were inside the street car?’ to which he answered ‘I didn't.’ Upon another occasion plaintiff was asked the following questions and gave the following answers thereto:

‘Q. And you saw when you got on the car that the rear of the street car was heavily crowded, did you not? A. No, sir, I didn't notice until I got on there, until the car started off.

‘Q. As a matter of fact, you noticed that other passengers were riding on the steps before you got on? A. Yes, sir.’

With plaintiff standing on the second step, the street car proceeded a block to 33rd Street, at which point the automobile of the co-defendant Commodore collided with the steps upon which plaintiff and other passengers were riding, irpping the steps from the body of the street car and precipitating plaintiff on his head into the street to his injury.

Appellant does not challenge the jury's finding that it was guilty of negligence and concedes that, because the evidence upon that issue was in conflict, the jury's finding thereon is binding upon this court.

As a first ground for reversal, appellant earnestly contends that the evidence conclusively established that plaintiff was guilty of contributory negligence as a matter of law, by reason of which the trial court erred in denying the motions for nonsuit, directed verdict, and judgment non obstante veredicto.

At the trial there was introduced into evidence a traffic ordinance of the City of Los Angeles, numbered 77,000, section 80.47 of which reads as follows: ‘Unlawful Riding. No person shall ride upon the fender, steps, or running board of any street car or vehicle.’ That plaintiff was standing upon the steps of a street car at the time of the accident must be conceded. And, if his riding thereon can be said as a matter of law to constitute ‘unlawful riding’ on the car steps in violation of the ordinance, then he was guilty of contributory negligence, if his failure to comply with the ordinance proximately contributed to his injury. Hurtel v. Albert Cohn, Inc., 5 Cal.2d 145, 147, 52 P.2d 922; Schultheiss v. Los Angeles Ry. Corp., 11 Cal.App.2d 525, 527, 54 P.2d 49. Whenever the violation of a statute or ordinance contributes proximately to the plaintiff's injury, the issue ceases to be done of fact and becomes an issue of law, the consideration thereof being removed from the trier of fact. The rule in this regard is thus set forth in Lorry v. Englander Drayage & Warehouse Co., 108 Cal.App. 116, 118, 291 P. 467, 468:

‘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. Ivancich v. Davies, 186 Cal. 520, 199 P. 784; Strong v. Olsen, 74 Cal.App. 518, 241 P. 107. 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.’

In the instant case, respondent contends that, while he was using the steps of the street car in an effort to board the same, he was not riding on the steps within the meaning of that term as used in the ordinance. In Connard v. Pacific Electric Railway Co., 14 Cal.2d 375, 377, 94 P.2d 567, 568, our Supreme Court says: ‘There is a clear distinction between the conduct of one who over a period of time deliberately stands or ‘rides' on the steps of a moving car, and the conduct of one who merely undertakes, after the signal to stop has been given, to use the steps in the course of a continuous route from car seat to station platform.’ The case just cited involved the construction of the aforesaid section of the Los Angeles City Ordinance, with which we are here concerned. The evidence in that case showed that plaintiff, a passenger on the car, announced to the conductor his intention to alight at the next regular stop, whereupon the conductor gave the usual signal for the motorman to stop and the plaintiff proceeded rearward as the car began to slow down. It had slowed down to a speed of two or three miles per hour when plaintiff reached the back end and was continuing to decrease speed. Believing the car would come to a full stop, plaintiff started down the steps preparatory to alighting. He had reached the second or middle step, holding on to the hand rod, when, instead of coming to a full stop, the car suddenly ‘gave a jerk, or lurch, followed by a rapid forward movement.’ Plaintiff was thrown off the steps and onto the station platform sustaining serious injuries. In reversing a judgment entered upon a directed verdict, the Supreme Court said, 14 Cal.2d at page 378, 94 P.2d at page 569: ‘In the present case, it was for the jury to say whether, under the evidence, plaintiff's position on the steps was so maintained over a period of time as to constitute ‘riding’ thereon, or whether he was attempting to alight from the car while in motion, or whether he was merely making a proper and necessary use of the steps as a means of exit, timing his descent to the station platform to occur simultaneously with the anticipated full stop of the car.' Manifestly, one does not usually get on or off a street car without ascending or descending the steps thereof, and it is not unusual for a street car to start up while some passengers are on the steps waiting for those in front of them to pay their fares and proceed into the car, thereby making room for the passengers temporarily upon the steps to proceed onto the rear platform and into the car. From the very language of the ordinance here in question, it is apparent that the legislative body intended there should be some elasticity in the application of its provisions and they, therefore, did not use the word ‘stand’ but used the word ‘ride’ on the steps, thus signifying the legislative intent that not everyone who, under any and all circumstances, stands upon the steps while entering or leaving the car is guilty of a violation of the law. As was said by this court in Shannon v. Thomas, 57 Cal.App.2d 187, 197, 134 P.2d 522. 527: ‘In other words it must be held that the triers of fact, in applying the section to a given case, may have resort to the well established rule that what a person of ordinary prudence would have done under similar circumstances can be considered a practicable compliance with the law. Mauchle v. Panama-Pacific International Exposition Co., 37 Cal.App. 715, 174 P. 400; McLellan v. Cocola, 133 Cal.App. 9, 24 P.2d 200.’

In view of the inviolable right of a litigant to a trial by jury as guaranteed by both the federal and state constitutions, it is an established rule that only when it can be said as a matter of law that no reasonable conclusion is legally deducible from the evidence other than would sustain a verdict for defendant and that any oher holding would be so lacking in evidentiary support that a reversal on appeal would be imperative or a trial court would be required to set it aside, that justification exists for the court to take a case from a jury and render the decision itself. Therefore, upon this appeal the question to be determined by us is whether respondent was, as a matter of law, guilty of contributory negligence which proximately contributed to his injuries when he stood upon the steps of the street car in the manner and under the circumstances which characterized his conduct. Unless it can be said that reasonable minds can draw but one inference from the conduct of plaintiff and that inference points inevitably to the conclusion that the use of the steps by plaintiff in the instant action constituted a ‘riding’ thereon in violation of the ordinance as distinguished from a proper, transitory, temporary or necessary use of the steps as a means of ingress to the street car, then we cannot disturb the ruling of the trial court in permitting the issue of contributory negligence to be submitted to the jury,

In that regard, it must be conceded, as contended by appellant, that respondent admitted that he ‘saw other passengers riding on the steps,’ but we cannot agree with appellant in its claim that the evidence shows that respondent saw ‘that it would be impossible for him to enter the interior of the car’ before he got onto the step. Furthermore, after he had gotten onto the second step the car was in motion and continued uninterruptedly for only one short block, when the collision with the automobile occurred. In other words, from the time plaintiff ascended the steps until the happening of the accident, he could not have alighted with safety, because the street car was in motion. It is also true that after he got onto the steps of the car plaintiff paid his fare and received a transfer, but can it be said that the only reasonable inference to be drawn from the aforesaid conduct is that plaintiff deliberately stood or rode on the steps of the street car for such a period of time and in such a manner as to constitute a violation of the City Ordinance, rather than that when he got onto the step he did so with the intent and purpose of wending his way upward to the rear platform and the interior of the car? Even though plaintiff observed others riding on the steps of the car as it arrived at 32nd Street, can it be said as a matter of law that this fact should have deterred him from attempting to board the street car? Reasonable minds might conclude therefrom that such passengers standing on the steps as the car approached the loading zone were preparing to alight therefrom.

Under the facts of the instant case, the foregoing debatable questions were properly submitted to the jury, and if the jury, as evidently it did, credited the testimony of plaintiff and the evidence favorable to him, they would be justified, had they been properly instructed, in concluding that his occupancy of the steps of the street car was not in violation of the ordinance. The court, therefore, properly denied the motions for nonsuit, directed verdict, and judgment non obstante veredicto.

Finally, appellant contends that grave prejudicial error was committed by the trial court by giving a certain instruction. Appellant offered an instruction which it is not necessary to here set forth and which instruction was modified and by the court given on its own motion. The challenged instruction reads:

‘I instruct you that Section 80.47 of the Municipal Code of the City of Los Angeles, in effect at the time of the happening of this accident, provided as follows: ‘No person shall ride upon the fender, steps, or running board of any street car or vehicle’.

‘Conduct which is in violation of the code sections just read to you constitutes negligence per se. This means that if the evidence supports a finding, and you do find, that any party to this action did so conduct himself it requires a presumption that he was negligent. However, such presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable, justifiable, and such as might reasonably have been expected from a person of ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so until causes, not of his own intended making, induce him, without moral fault, to do otherwise.’ (Emphasis added.)

In the light of what we have hereinbefore stated, it is manifest that the instruction as given was not a correct statement of the law, was conflicting, and might well intend to confuse the jury. By it the jury was first advised that conduct in violation of the pertinent ordinance constituted negligence per se, then they were told that conduct in violation of the ordinance merely raised a presumption of negligence and that such presumption was not conclusive. No rule is more firmly established in this state than that a violation of a statute or ordinance is conclusive evidence of negligence. Connard v. Pacific Electric Railway Co., supra, 14 Cal.2d at pages 376–379, 94 P.2d 567; Hurtel v. Albert Cohn, Inc., supra, 5 Cal.2d at page 147, 52 P.2d 922; Lorry v. Englander Drayage & Warehouse Co., supra, 108 Cal.App. at page 118, 291 P. 467; Atkins v. Barnum, 132 Cal.App. 506, 509, 23 P.2d 103; Scragg v. Sallee, 24 Cal.App. 133, 144, 140 P. 706. This erroneous instruction was not corrected in any other instruction and, in giving it, the court committed prejudicial error. Upon a retrial, the jury should be instructed regarding the ‘distinction between a proper, transitory, temporary, or necessary use of the * * * steps of a car, and the ‘riding’ on such * * * steps in violation of an ordinance * * *.' Connard v. Pacific Electric Railway Co., supra, 14 Cal.2d at page 378, 94 P.2d at page 569. The jury should also be instructed that if they are convinced that the conduct of the plaintiff was in violation of the ordinance, then such violation is conclusive evidence of negligence and that, if the violation of the ordinance was a proximate cause of the accident plaintiff was guilty of contributory negligence and cannot recover.

In the interests of justice and to the end that the jury may be properly instructed in accordance with the views herein expressed, it is ordered for the foregoing reasons that the judgment be, and it is hereby, reversed and the cause remanded for a new trial.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.