MUDRICK v. MARKET ST RY CO (1937)

From a judgment awarding the plaintiff damages in the sum of $42,500, the defendants have appealed and have brought up a typewritten record.

On September 18, 1934, the plaintiff, then thirteen years of age, was injured in an accident between Eighteenth and Nineteenth streets on Castro. In the accident a street car operated by Market Street Railway Company, herein after referred to as railway, ran over the feet of the plaintiff, and both legs were amputated below the knees. One of the defendants, G. Hageman, was the gripman, and C. J. Heffernan was the conductor. It was the theory of the plaintiff that he boarded a Fillmore street car, paid his fare, took a transfer to a Castro street car, transferred at Church and Market, took a transfer, and at Eighteenth and Castro he changed to the cable car. Continuing, he claimed that in doing so he took a position standing on the running board at the extreme front end on the right–hand side, and was facing to the south, that is, to the front, and was holding onto a stanchion with his left hand. After the car had moved about half a block, the plaintiff claimed that the car jerked several times, that he lost his grip, slid down the stanchion, fell off the car, and that his legs passed forward under the front wheel and were run over. On the other hand it was claimed by the defendants that immediately prior to the accident the plaintiff ran along the street by the side of the car, attempted to board it, slid and fell, and that his legs pressed forward under the right front wheel of the car and were run over.

Castro street cable car No. 5, the car involved in this accident, left Eighteenth street and was traveling south in the direction of the Lick school. There were on board several adults, but the larger part of the passenger list was made up of students on their way to attend the Lick school.

On the day of the accident, Arthur B. Minaker, a police officer, called on the plaintiff at the hospital, asked him certain questions, and later made a report to his superior officer. Either on the day of the accident or the following day, Mr. J. C. Bowman, principal of Lick school, called all students who had been on the car into the auditorium. He asked each child who claimed to know anything about the accident to write out and hand in a written statement. Many such statements were handed in. After the accident and before the trial, representatives of the plaintiff called on various witnesses and obtained written statements. During the same period representatives of the defendants called on several of the witnesses and obtained written statements. Many of those written statements were produced at the trial.

The defendants earnestly contend there is no testimony, credible or otherwise, from which it could be fairly inferred that there was any unusual jerking of the car of sufficient violence to cause plaintiff to fall therefrom, and giving full faith and credit to every scrap of testimony in the record pertaining to jerking, results in the inevitable conclusion that such jerking as did occur was not the cause of plaintiff's fall or injury. The plaintiff took the stand as a witness in his own behalf, and testified that when car No. 5 was at a standstill at Eighteenth and Castro he boarded the car and took the position hereinabove indicated. He testified regarding several jerks of the car, and that finally he was thrown to the street, run over, and suffered the injuries complained of. Herbert McCulla testified that he boarded the car at the same time and place, took a position on the same side of the car about three feet behind the plaintiff, and was holding onto the second stanchion. Continuing, he gave testimony corroborating the plaintiff. Frank Petalas, another schoolmate, testified that he boarded the car at the same time and place, took a position at the extreme rear end on the right–hand side, and from that position he observed the plaintiff at all times and saw him fall off the car into the street. Other schoolmates testified to other facts corroborating the plaintiff at least in part. The plaintiff did introduce some testimony that the car jerked. Taking that testimony in connection with the fact that the plaintiff fell or was thrown to the street, the determination of the issue was properly left to the jury. McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 96, 59 P.2d 959. In this connection, we understand the defendants to claim that the plaintiff did not say his fall and the jerking happened simultaneously. As we read his testimony we gather the same impression. The defendants contend the plaintiff testified the jerking occurred at one spot and that he fell off the car at a point 260 feet distant therefrom. That statement is true, but the witness testified to several different jerks. He did not testify his falling and jerking were simultaneous events, nor did he testify to the contrary. However, taking all of the testimony given by all of the witnesses produced by the plaintiff, the record was such that the jury was entitled to find that from the time the plaintiff boarded the car and until he fell into the street there were several jerks, and that one of the jerks caused him to fall. That there was evidence to the contrary will be freely conceded. However, we think it is equally true there was sufficient evidence for the jury to base a finding and it may not be said, as a matter of law, that such evidence was incredible, improbable, or impossible.

The next point made by the defendants is that the trial court erred in instructing the jury on the doctrine of res ipsa loquitur. It was the contention of the plaintiff, as set forth in his amended complaint, that the accident arose by reason of (1) the negligent operation of the car and (2) the negligent overcrowding of the car. To those claims, in his opening statement, the plaintiff attempted to add that the car (3) was old and obsolete; (4) that the car was undermanned; (5) that the railway jammed the school children into the car like sardines; (6) that when the car was overcrowded the cable would move the car by jerks; and (7) at such times the children would be jerked forward and backward. In his brief the plaintiff adds a further specification; (8) that immediately before he fell the plaintiff called to the gripman to stop the car, and the call was ignored. Pointing to the fact that after alleging general negligence the plaintiff alleged specific negligence, to wit, overcrowding of the car, the defendants assert that there was no place in this case for the application of the doctrine of res ipsa loquitur. The point has been directly ruled against the contention of the defendants. McComas v. Al. G. Barnes Shows Co., 215 Cal. 685, 697, 12 P.2d 630. The other contentions made by the plaintiff during the presentation of his case and by us numbered 3, 4, 5, 6, 7, and 8, if they had also been alleged in his pleading, would have constituted other specific allegations of negligence and would not have changed the rule.

Not waiving their contention just discussed, the defendants claim the instructions on the application of the doctrine of res ipsa loquitur were so improperly worded that they constituted prejudicial error. The instructions complained of were numbered XVIII, XIX, and XX. In brackets we have inserted certain words; otherwise the instructions were as follows:

“XVIII.

“Proof of an injury to a passenger on the car of a common carrier, caused by the (unusual) operation of the car, raised the legal presumption that the injury was caused by the negligence of the carrier and casts upon the carrier the burden of proving that such injury was caused by some unavoidable casualty or by some other cause which human care and foresight could not prevent or by the contributory negligence of the passenger, unless these facts be shown by evidence adduced by the plaintiff.

“XIX.

“When it is shown that a passenger is injured from some (unusual) movement of the car by those in charge of it or from something connected therewith or in the control of the defendant, the law presumes prima facie that the particular thing thus shown to have caused the injuries was due to the defendant's neglect, and the burden is then thrown upon the defendant to establish that such injury was not caused by its neglect but by some inevitable casualty or other cause which human care and foresight could not have prevented or by the contributory negligence of the passenger, unless such facts be shown by evidence adduced by the plaintiff.

“XX.

“If you believe from the evidence that the plaintiff became a passenger upon the cable car of the defendant Market Street Railway Company and that thereafter, owing to some (unusual) operation of the car by the persons in charge of it, he was injured, then the law presumes that he was injured through the negligence of the defendant Market Street Railway Company, and if you find that his injury was caused by some negligence, however slight, of defendant or of its agents or employees acting in the course and scope of their employment, and that the plaintiff was free from contributory negligence, then your verdict shall be in favor of the plaintiff and against the defendant Market Street Railway Company.”

The defendants claim the parenthetical words should have been inserted, and that in the absence of such expressions the instructions did not state the law. The claim is well founded. The point has been directly adjudged in this state and seems to be the settled law in other jurisdictions. In the case of Steele v. Pacific Electric Ry. Co., 168 Cal. 375, 143 P. 718, 719, a similar instruction was before the court. It was as follows: “On the other hand, the proof of injury of plaintiff on a car of the defendant casts upon the defendant the burden of proving that the injury was occasioned by inevitable casualty, or some other cause which human care and foresight could not prevent, or by the contributory negligence of the plaintiff.” It was attacked as not being sound. The court made an extended examination and comparison of the authorities. Then the court said, 168 Cal. 375, on page 381, 143 P. 718: “Here the essential fact in issue was: How did the accident occur? Was it through the act of defendant in starting up the car while plaintiff was attempting to alight, or did it result from an attempt on her part to get off while it was still in motion? And the vice of the instruction was in ignoring any necessity on the part of the jury of finding adversely to the defendant on this issue as a prerequisite to applying the presumption against it, but, on the contrary, instructing them that such presumption arose and could be applied simply from proof of injury sustained by the plaintiff.”

In the case of Rystinki v. Central California T. Co., 175 Cal. 336, 165 P. 952, the point was again before the court. On page 344 of 175 Cal., 165 P. 952, 956, the court said: “The court gave the following instruction: ‘You are instructed that contributory negligence on the part of the plaintiff cannot be presumed from the mere fact of injury but must be proved. On the other hand, proof of the injury, coupled with proof that it proceeded from a sudden, unusual or violent jerking, or swinging, or swaying of the car, while the plaintiff was preparing to alight, casts upon the defendant, the burden of proving that the injury, was occasioned by inevitable casualty or some other cause which human care and foresight could not prevent, or by the contributory negligence of the plaintiff.’ (The italics are ours.) With the exception of the italicized portion, this is the same instruction condemned by this department in Steele v. Pacific Electric Ry. Co., 168 Cal. 375–377, 143 P. 718; but the addition of the words in italics rescues the instruction from the vice of the court's direction to the jury which we there reviewed. It is true that the mere injury to the 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 happening to the car does cast upon defendant the burden of exculpation as indicated by the instruction.” Finally, in the recent case, McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, at page 95, 59 P.2d 959, 962 the court states the rule to be as follows: “We are in perfect accord with the decisions cited by appellant which hold that ordinary street or electric cars are liable to start with more or less of a sudden lurch or jerk; that some swaying is inherent and unavoidable in any moving car; that passengers in such cars must assume these ordinary risks when they voluntarily enter a car for the purpose of being transported therein; and that any injury sustained by a passenger by such ordinary movements of the car cannot be attributed to the negligent operation of the car.” Now in the instant case the defendants contended: (1) That the plaintiff tried to board a moving car, slipped, and fell, and that he was guilty of contributory negligence; and (2) that in no event was the car operated by any unusual jerks, etc. If, perchance, the jury found that the plaintiff was not guilty of contributory negligence then under instruction XX it was directed to bring in a verdict in favor of the plaintiff, whether the accident occurred from usual or unusual jerks of the car being operated by the defendants. The said instructions were not modified by any other instructions.

It will be noted that in the foregoing instructions the words “presumed” and “legal presumption” are used and repeated. No statute authorizes such usage. They are strong words, and are looked upon as strong expressions by the profession as well as by laymen. In Davis v. Hearst, 160 Cal. 143, 116 P. 530, the court, after an extensive examination of the law, pointed out that if there is a presumption then one must be able to turn to the statute so declaring, as a presumption is a deduction which the law expressly directs to be made from particular facts. That decision has never been modified nor reversed. However, in some instances it has been held that although a certain instruction was erroneous because of the improper use of the word, the instruction was not prejudicial. But in the instant case, considering the particular facts before the court, and considering the repeated use in three consecutive instructions, we think it clear that the jury must have been impressed to the effect that, as indicated in each of said instructions, it was bound to presume the facts stated in said instructions until the contrary was proved. In other words, the expressions referred to were not only erroneously used, but the error was clearly prejudicial.

Instruction XXII, as given by the court, was very long and contained several propositions. Among others it directed the jury as follows: “A boy thirteen years old is not required to use the same degree of care and caution that an adult is required to use, and is only bound to employ that degree of care and caution which boys of his age and condition customarily exercise.” The defendants contend that the rule as stated was too drastic. They contend that the beginning of the sentence would be more correct if worded, “A boy thirteen years old may or may not be required to use,” etc. They argue that as written the court took from the jury its right to determine whether the plaintiff in the instant case exercised due care. They cite and rely on Cahill v. E. B. & A. L. Stone Co., 167 Cal. 126, 138 P. 712. At page 139 of 167 Cal., 138 P. 712, 717 the court said: “The care which a child is required to exercise is only that degree of care which children of his maturity and capacity under similar circumstances ordinarily exercise, and this, except in a case where there can be no doubt under the evidence that the child not only knew, but at the time realized and appreciated, the danger of his conduct is to be determined from the circumstances of the particular case in which his conduct is involved and under the evidence there presented to the jury.” Further down on the same page, the court quoted with approval as follows: “The question as to the capacity of a particular child at a particular time to exercise care in avoiding a particular danger, is one of fact, falling within the province of a jury to determine.” The passage quoted from said instruction was an erroneous statement of the law.

The same instruction contained another passage as follows: “On the other hand a carrier of passengers owes to children who are passengers on its cars a greater degree of care than it owes to adults and that conduct which might be careful with regard to a grown person might be gross negligence as regards a child.” The defendants call to our attention that in another instruction the jury was informed a common carrier owes to its passengers the highest degree of care. Then turning back to the passage just quoted, the defendants contend the instruction, in effect, advised the jury that the defendants were insurers of the plaintiff. The plaintiff replies that the case of Brizzolari v. Market St. Ry. Co., 7 Cal.App.2d 246, 46 P.2d 783, is authority sustaining the instruction under attack. But an examination of that case discloses the language of an instruction was not involved. Furthermore, the court was there speaking of the quantum of care and not of the degree of care. The expressions are not synonymous. Raymond v. Hill, 168 Cal. 473, 483, 143 P. 743. The second passage was also an erroneous statement of the law.

In their next point the defendants claim the verdict is excessive. The jury returned a verdict for $50,000. It was attacked on a motion for a new trial. The trial court made a conditional order that if the plaintiff should waive $7,500 of said sum the motion would stand denied. A stipulation was promptly filed, and the judgment as appealed from is $42,500. The defendants support the point which they now make by citing many cases in which the damages for similar injuries have been reviewed. As no two cases are entirely similar in their facts, other cases are not, ordinarily, helpful in ruling the point before us. As the judgment must be reversed for other reasons, it is unnecessary to discuss the point further.

Finally, it is claimed that Mr. Hallinan, the plaintiff's attorney, was guilty of prejudicial misconduct. They cite a large number of instances. The reasonable length of this decision precludes us from restating them. It is sufficient to state that such conduct falls within the doctrine of Keena v. United Railroads, 197 Cal. 148, 156–160, 239 P. 1061; Gackstetter v. Market Street Ry. Co., 130 Cal.App. 316, 20 P.2d 93; and Hanley v. Milwaukee Electric Ry. & Light Co., 220 Wis. 281, 263 N. W. 638, and would be sufficient grounds for reversing the judgment. But, by reason of the conclusions reached above, we do not deem it necessary to further discuss the point.

The judgment is reversed.

STURTEVANT, Justice.

We concur: SPENCE, Acting P. J.; GOODELL, Justice pro tem.