BRANDENBURG v. PACIFIC GAS ELECTRIC CO (1946)

The plaintiff secured a verdict for damages in the sum of $2,500 for personal injuries sustained by him as a result of being struck by the rear end of a street car which, as it turned to the left upon an intersecting street, overlapped a safety zone upon which he stood after alighting from the car.

The trial court granted a judgment in favor of the defendant notwithstanding the verdict under Section 629 of the Code of Civil Procedure, on the theory that there was no evidence of defendant's negligence, and upon the contrary, that plaintiff was guilty of contributory negligence.

The plaintiff, who was employed as a painter with the Southern Pacific Company, had resided for only a few months southeasterly of the vicinity where the accident occurred, and he was not familar with the operations of street cars on the track in question. The defendant owned a city street car system and operated street cars on and along 28th street and elsewhere in the City of Sacramento. There was but one man, a motorman, employed on the car in question. A track extends northerly from southeast Sacramento, where the plaintiff lived, along 28th street past P street, where the accident occurred, to the down-town district. There is also a turn in the 28th street track at P street which proceeds westerly. At the corner of 28th and P streets, there was, adjacent to the track on 28th street, a safety zone which was forty-four feet in length and four feet in width outlined on the pavement by broad white stripes, and marked at the corners with white buttons. There was an intervening space of about eight feet between the easterly line of the safety zone and the east curbing of the street. Between the edge of the zone next to the track and the street car, when it was traveling straight north alone 28th street, there was a space of about six inches. When the car turned westerly at P street, the rear end overlapped the safety zone a distance of about two feet, extending approximately to the center of the zone. Mr. Colwell, the motorman, was aware of that fact. The plaintiff had no such knowledge.

About 8 o'clock on the evening of June 11, 1943, the plaintiff and his family consisting of his wife and three small children, boarded the street car traveling northerly along 28th street to go to the Lutheran Church, situated one block westerly of 28th street. Since the plaintiff supposed the car was going to continue northerly, and not knowing it would turn westerly, he signalled the motorman to stop at P street. The car stopped opposite the safety zone, and the plaintiff and his family alighted from the front door of the car. He said in that regard: ‘Well, I stepped into the safety zone and while doing this I was observing the welfare of my family. I was looking after them * * * I was motioning to them to stay in the clear and not to run out in the street, stay in the safety zone, and as I was turning to the left the back right side of the street car struck me or collided me striking me to the sidewalk.’

The motorman failed to call plaintiff's attention to the danger from the car overlapping the zone, and he failed to warn the plaintiff that the car was going to turn west on P street. The plaintiff said that he was struck ‘three or four seconds' after he alighted. The car must have started immediately after plaintiff and his family left it. The plaintiff's back was toward the rear end of the car as it swung out over the safety zone. He did not see the protruding end of the car. The plaintiff said that if he had known the car was going to turn westerly on P street he would have remained on the car until it reached 27th street, because they would then have been one block nearer their destination. The plaintiff was seriously injured. It is not contended the verdict was excessive.

Appellant contends that the defendant was negligent in failing to inform the plaintiff that the street car was about to make the turn to the left on P street and that it would be dangerous for passengers to alight in the safety zone on account of the protruding rear end of the car under such circumstances, or that the zone was erroneously outlined. It is asserted there is ample evidence to support the implied findings that the defendant was guilty of negligence, under the circumstances of this case, and that plaintiff was not guilty of contributory negligence.

We are persuaded the plaintiff is correct in the first portion of the foregoing contention, and that the court therefore erred in granting the motion for judgment in favor of the defendant notwithstanding the verdict.

A motion for judgment notwithstanding the verdict of a jury should be granted, under Section 629 of the Code of Civil Procedure, only when it appears from a full and fair consideration of the whole evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.

The rule applying to the granting of a motion for judgment notwithstanding the verdict is precisely the same as the one with respect to a motion for nonsuit. Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576; Myers v. Southern Pacific Co., 14 Cal.App.2d 287, 58 P.2d 387. If there is any evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, such a motion should be denied.

The duty devolving upon a street railway company toward its passengers requires it to exercise utmost care and diligence for their safe carriage, and a reasonable degree of skill, and to provide everything reasonably necessary for that purpose. Section 2100 of the Civil Code provides in that regard: ‘A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.’

A marked safety zone in a street, adjacent to a street railway track, is ordinarily an assurance to passengers entering or alighting from the cars operated thereon that they are reasonably safe within the limits of the zone, from injury on account of the movement of the cars. Section 88 of the Vehicle Code, St.1935, p. 99, defines a safety zone as: ‘The area or space lawfully set apart within a roadway for the exclusive use of pedestrians and which is protected, or which is marked or indicated by vertical signs, raised markers or raised buttons, in order to make such area or space plainly visible at all times while the same is set apart as a safety zone.’

We do not mean to infer that the defendant was guilty of negligence in setting apart and erroneously marking the zone which is involved in this case, so that it tended to deceive passengers alighting from a passing street car into believing they are safe from injury from the cars while the passengers remain within the outlined borders thereof, since we assume the City of Sacramento outlined and maintained that zone. But the marked zone was not safe from cars which turned abruptly at that corner to travel westerly on P street. Such cars overlap the marked zone a distance of two feet, and become a menace to passengers standing thereon. The defendant's motorman knew that fact. The plaintiff was ignorant of it. Moreover, he assumed the car was going straight ahead up 28th street. The defendant asserts that it is relieved of negligence in failing to call the passenger's attention to the dangerous and misleading marked zone because it was outlined and maintained by the City of Sacramento. We think not. There was still a duty devolving on the defendant, under the circumstances of this case, to warn its passengers of the danger. The defendant adopted that zone as a proper place to discharge its passengers, knowing that it was marked so as to become misleading and dangerous. It could have stopped the car twenty or thirty feet before reaching the intersection and thus have avoided the danger to discharged passengers from the overlapping rear end of the car as it rounded the curve. It did not do so. On the contrary, it stopped only a few feet from the intersection, thus tending to assure them of the safety of the erroneously marked zone. Under such circumstances, we think it was the duty of the motorman to warn the passengers alighting in that zone, by either informing them of the danger, or by seeing that they were safely beyond the overlapping car before he proceeded to move it around the curve. At least, we believe it was the province of the jury to determine whether the conduct of the motorman constituted negligence under the circumstances of this case. That issue was determined by the jury against the defendant. There is substantial evidence to support that finding.

The duty of a street railway company toward its passengers does not necessarily cease immediately upon their alighting from the cars. Mangan v. Des Moines City R. Co., 200 Iowa 597, 203 N.W. 705, 41 A.L.R. 368; Dwyer v. Los Angeles Railway Corp., 115 Cal.App. 709, 2 P.2d 468; Chunn v. City & Suburban Railway, 207 U.S. 302, 28 S.Ct. 63, 52 L.Ed. 219; Lagomarsino v. Market St. Ry. Co., 158 P.2d 982. In the case last cited it is said, at page 985 of 158 P.2d: ‘It is not important to determine whether she had become a passenger. Intending to become a passenger she had come to a place recognized by the practice of the defendant as a convenient and suitable one from which to enter the car, and the car stopped to receive her. The defendant owed her an affirmative duty. It was bound to use that care for her protection, which was reasonably required in view of the situation in which she had at the defendant's invitation placed herself, of the purpose for which she was there, of the approach of the car which she was intending to enter, and of the dangers to be apprehended * * *.’

It is true that passengers who board or alight from cars which stop on a curve of the track are ordinarily bound to anticipate that the end of the car will protrude beyond the outside curve of the track as the car moves around the curve. Laurent v. United Railways of St. Louis, Mo.Sup., 191 S.W. 992; Mangan v. Des Moines City R. Co., supra. But in the present case the car did not stop on the curve of the track. It stopped before it reached the curve, opposite the misleading marked safety zone. The plaintiff did not know that the car would turn westerly on the curve after it started forward. If the car had stopped some thirty feet southerly of the turn the danger of the protruding end of the car would have been avoided.

For the reasons previously stated, we may not hold as a matter of law that plaintiff was guilty of contributory negligence. Since the plaintiff assumed that the car would proceed straight north along 28th street, and he had no knowledge that it would turn westerly on P street, and he did not know the safety zone had been erroneously marked to indicate that it was ordinarily safe for passengers alighting from the cars to remain within the outlines thereof, it became a question for the jury to determine, under the facts of this case, whether he was or was not guilty of contributory negligence. Mangan v. Des Moines City Ry. Co., supra; 38 Am.Jur. 866, § 190. If the plaintiff had no cause to apprehend the danger, he would not be guilty of contributory negligence as a matter of law. In the text last cited it is said in that regard: ‘Contributory negligence is not imputed to a plaintiff for failing to look out for a danger which he had no reasonable cause to apprehend, or to a plaintiff who was deceived by appearances calculated to deceive an ordinarily prudent person.’

In the Mangan case, supra, it is said [200 Iowa 597, 203 N.W. 709]:

‘* * * Conceding that a pedestrian must be presumed to take notice of the obvious fact that the body of a street car in rounding a curve must necessarily swing out some little distance from the track on the outside of the curve, plaintiff herein had no reason to believe that the markings of the safety zone would be within the area of the overswing. * * *

‘Whether ordinarily prudent persons would have done what the plaintiff did under the circumstances is the test, and it cannot be said as a matter of law that she was guilty of negligence contributing to her injury. Negligence cannot be imputed to one who is deceived by appearances calculated to deceive an ordinarily prudent person. Care in avoiding injury implies that there is or would be, with all prudent persons, something to create a sense of danger, and it is for the jury to say whether or not the circumstances are such as would put a prudent and cautious person upon his guard.’

The judgment notwithstanding the verdict is reversed and the court is directed to render judgment for plaintiff in accordance with the verdict of the jury.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.