Brandelius v. City and County of San Francisco

• Decision Date: 25 January 1957
• Court: California Supreme Court
• Parties: Inga A. BRANDELIUS and Pierre Brandelius, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Jesse Mosley et al., Defendants and Respondents. S. F. 19552

Page 432

306 P.2d 432

47 Cal.2d 729

Inga A. BRANDELIUS and Pierre Brandelius, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Jesse Mosley et al., Defendants and Respondents.

S. F. 19552.

Supreme Court of California

Jan. 25, 1957.

Hoberg & Finger and Ingemar Hoberg, San Francisco, for appellants.

Dion R. Holm, City Atty., and Jerome Cohen, Deputy City Atty., San Francisco, for respondents.

SPENCE, Justice.

Plaintiffs appeal from an order granting defendants' motion for a new trial in an action for alleged wrongful death. The order specifies that the new trial was granted 'solely' because the court felt that 'the jury was not properly instructed.' The propriety of the order therefore depends upon a determination of whether the trial court had correctly instructed the jury. The challenged instructions relate to the following subjects: (1) the degree of care required of a carrier with respect to an alighting passenger; (2) the presumption of due care in relation to the deceased's conduct; and (3) the doctrine of last clear chance.

It is well settled that the granting of a motion for a new trial rests so completely within the discretion of the trial court that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 169, 153 P.2d 338; Fennessey v. Pacific Gas & Elec. Co., 10 Cal.2d 538, 544, 76 P.2d 104. On appeal all presumptions are in favor of the order granting a new trial, Abercrombie v. Thomsen, 59 Cal.App.2d 331, 335, 138 P.2d 701; Weaver v. Shell Oil Co., 129 Cal.App. 232, 233, 18 P.2d 736, and the order will be affirmed if it may be sustained on any ground, Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 262, 143 [47 Cal.2d 734] P.2d 929; Follett v. Brown, 118 Cal.App. 198, 200, 5 P.2d 51, although the reviewing court might have ruled differently in the first instance. Hall v. Desser, 8 Cal.2d 29, 30, 63 P.2d 809; Whitfield v. Debrincat, 18 Cal.App.2d 730, 733-734, 64 P.2d 960. In the light of these settled rules, we have concluded that the order granting a new trial in the present case must be affirmed.

The accident occurred about 8:05 o'clock on the morning of May 6, 1952, at the intersection of Powell and California Streets in San Francisco. The city operates a northerly-southerly cable car line on Powell Street and an easterly-westerly one on California Street. The deceased was struck by a northbound Powell Street cable car after he had alighted from a southbound one. He was on his way to work at the Stanford Court Apartments, which are situated at the southwest corner of the intersection. To take on and discharge passengers, the southbound cable car stops in the southwest part of the intersection with its front in the southern crosswalk across Powell Street. The car has an open front part, with the gripman operating the car from his position in a space between two benches extending along the car's longitudinal axis. The passengers on the front left-hand bench have no access to any other part of the car and must alight to the left between the southbound and northbound tracks. As shown by the scale map in evidence, the distance between these tracks is 5 feet 10 inches; the tracks in each direction are 4 feet wide. A cable car, according to the scale model in evidence, is 8 feet wide, with a wheel distance of 4 feet and an overhang 2 feet wide at each side. The free space between two passing cable cars is therefore 1 foot 10 inches.

The first point to be determined is whether there was error in giving instructions on the degree of care required of a carrier toward an alighting passenger. The court instructed as follows: 'The responsibility imposed by law upon a carrier of passengers for hire, such as the operation of a cable railway, includes the duty to provide a reasonably safe place where the passengers may board or alight from the cable cars.

'If you find from the evidence that the deceased was exercising ordinary care for his own safety and that he had been discharged as a passenger at and was occupying a place designed by defendant City and County as a regular stopping place for the discharge of passengers, then the defendant City and County owed to the deceased the duty to exercise the highest degree of care to avoid injuring him.

'A place to discharge passengers, as used in these instructions, refers to any place at which it is the practice of the carrier to stop for the purpose of discharging passengers. This includes such places immediately adjacent to the track which must be used, or reasonably may be expected to be used, by persons being discharged from the cable cars.

'The relationship of carrier and passenger, and the obligation to exercise the utmost care and diligence to provide safe carriage of passengers, continues until such time as an alighting passenger has reasonable opportunity to reach a place outside of the immediate sphere of activity of the carrier which might reasonably constitute an active hazard to the passengers.'

The parties agree that these instructions correctly state the law. However, defendants contend that these principles are not applicable because 'the carrier-passenger relationship had terminated as a matter of law when deceased alighted from the cable car and cleared the car from which he alighted.' But such conclusion here would too rigidly restrict the carrier-passenger relation and the duty of utmost care which attaches to it.

It is true that ordinarily the relation of passenger and carrier terminates when a street car passenger alights upon a public street and clears the car from which he alights, MacLean v. City & County of San Francisco, 127 Cal.App.2d 263, 271, 273 P.2d 698; McAlpine v. Los Angeles Ry. Corp., 67 Cal.App.2d 486, 489, 154 P.2d 911; Choquette v. Key System Transit Co., 118 Cal.App. 643, 652-653, 5 P.2d 921, but there are certain qualifications to be noted according to the circumstances of the case. In Dayton v. Yellow Cab Co., 85 Cal.App.2d 740, at page 745, 193 P.2d 959, at page 962, it was said that 'until the passenger reaches a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger, the rule of utmost care and diligence set forth in Civil Code, section 2100, still applies.' In Boa v. San Francisco-Oakland T. Rys., 182 Cal. 93, at page 100-101, 187 P.2d, at page 4, approval is given to the principles that 'responsibility continues until the passenger has had a reasonable opportunity of getting away from the car without injury'; that it is for the jury to decide whether or not the carrier allowed its passenger 'a reasonable opportunity to leave its car in safety and thus to pass beyond its care'; and that these rules apply to streetcar passengers specifically in cases of accidents 'caused by the negligent use by the railway company of its own instrumentalities.' See also Lagomarsino v. Market Street Ry. Co., 69 Cal.App.2d 388, 158 P.2d 982.

Reinhardt, an eye-witness, testified as to the happening of the accident: That he saw the deceased, when 6 feet south of the rear end of the stopped southbound cable car, walking north between the southbound and northbound tracks; that at the same time a northbound Powell Street cable car was approaching with its front in the southern crosswalk across Powell Street and then about 20 feet behind the deceased; that as the latter car drew near, the deceased turned around, throwing up his hands as he faced the oncoming car; and that evidently after being hit, the deceased staggered backwards a few feet and fell to the pavement.

This evidence would support the conclusion that the deceased, sitting on the left front bench of the southbound cable car and after it had stopped, alighted in the only possible way between the tracks; that the narrow space between passing cars 1 foot 10 inches was not safe for the discharge of passengers if a car from the south should then approach, especially when unnoticed; and that the deceased had not had a reasonable opportunity to get away before being struck. We therefore conclude that the foregoing instructions were properly given, and that the question of whether the carrier-passenger relationship had terminated was properly left to the jury as a question of fact for its determination.

Nor was it improper for the trial court to give an instruction on the presumption of due care on the part of the deceased at the time of the accident. While under some circumstances there is no room for the presumption where the party whose claimed negligence is at issue either himself testifies or introduces evidence in his own behalf as to his acts and conduct immediately preceding and at the time of the accident, Speck v. Sarver, 20 Cal.2d 585, 587-588, 128 P.2d 16, Zollars v. Barber, 140 Cal.App.2d 502, 506, 295 P.2d 561, the benefit of the presumption is available if such person be deceased and the testimony of plaintiffs' witnesses respecting the deceased's acts and conduct at the time involved is not 'wholly irreconcilable' with such presumption. Gigliotti v. Nunes, 45 Cal.2d 85, 93, 286 P.2d 809. Our review of the record here leads to the conclusion that the testimony of plaintiffs' witnesses was not wholly irreconcilable with the presumption.

The parties' final dispute is twofold with respect to the instruction on 'last clear chance.' Defendants contend that no instruction on that subject should have been given; and that, in any event, the instruction given was erroneous. We shall consider these two contentions in inverse order.

The instruction given, BAJI 205, read as follows:

'There has grown up in our law a certain reasoning process that we sometimes call to our aid in analyzing the facts of an accident case, and which is known as the doctrine of last clear chance. It is permissible to use the doctrine only after we first find,...