Finley v. City and County of San Francisco, 15159

• Decision Date: 29 December 1952
• Docket Number: No. 15159,15159
• Citation: 251 P.2d 687,115 Cal.App.2d 116
• Court: California Court of Appeals Court of Appeals
• Parties: FINLEY v. CITY AND COUNTY OF SAN FRANCISCO et al. Civ.

Page 687

251 P.2d 687

115 Cal.App.2d 116

FINLEY v. CITY AND COUNTY OF SAN FRANCISCO et al.

Civ. No. 15159.

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

Dec. 29, 1952.

Rehearing Denied Jan. 28, 1953.

Hearing Denied Feb. 26, 1953.

Jack Flinn, San Francisco, for appellant.

Dion R. Holm, City Atty., and Donald J. Kropp, Deputy City Atty., San Francisco, for respondent City & County of San Francisco.

Dana, Bledsoe & Smith, San Francisco, for respondent.

WAGLER, Justice pro tem.

This is an appeal by plaintiff from a judgment of non-suit in favor of the California Street Cable Railroad Co., a corporation, and a judgment in favor of the City and County of San Francisco, a municipal corporation, entered upon a jury's verdict in favor of the defendant City and County.

On January 4, 1949, while plaintiff was a fare paying passenger on the cable car of the defendant City and County, she suffered general and special damages by reason of injuries sustained by her when the cable car came to a sudden stop at the intersection of Hyde and Jackson Streets, at a point where the tracks of each system intersect at right angles and interlock.

On the morning of the accident, and the day before, workmen employed by the defendant California Street Cable Railroad Co. had been working on and about the portion of the tracks where they intersect. The plaintiff had no knowledge of the accident, and presented no direct evidence thereon. The defendant City and County presented evidence that a piece of angle iron was stuck in the cable slot of their tracks where the cable slots of the two defendants intersect. They presented evidence that this piece of iron caused the cable car grip to stick and bring the car to a sudden stop.

Plaintiff contends that there was sufficient evidence introduced in her opening case to allow the issue of negligence of the California Street Cable Railroad Co. to go to the jury, and that the court misdirected the jury to her prejudice so far as the defendant City and County was concerned.

Only two witnesses were used by plaintiff to establish the facts of the accident; the gripman on the cable car of the defendant City and County and the plaintiff herself. Plaintiff testified only that the cable car stopped suddenly and she was thrown against a stanchion.

The gripman testified that the car in which plaintiff was a passenger stopped at the entrance to the intersection where the accident occurred before proceeding across. That as he looked forward before and as he proceeded, the intersection was clear. There was no obstruction on the rails, and so far as he could see, the slot was clear. The grip was in good condition and he had no difficulty with the operation of the car before the accident. While the car was proceeding across the intersection, it stopped suddenly. It stopped with its front end four or five feet over the nearest rail of the California Street Cable Railroad Co. tracks, but not over the rail farthest from the front of the car. On the morning of the accident, the gripman saw workmen working on the tracks of the California Street Cable Railroad Co. at their intersection with the tracks of the City and County. The gripman knew most of the trackmen employed by his company, and did not recognize any of the men as employees of his company. The men were working on the tracks of the California Street Cable Railroad Co. on the two trips prior to the trip on which the accident accurred. On the afternoon of the day of the accident, he made three trips past the intersection in question. The accident happened on the third trip. No workmen were at the scene at the time of the accident.

The rule governing the propriety of the granting of a motion for non-suit has been stated by the Supreme Court in Blumberg v. M. & T. Incorporated, 34 Cal.2d 226, 229, 209 P.2d 1, 3, as follows:

'A trial court is justified in granting a motion for nonsuit '* * * when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.' * * * 'Unless it can be said as a matter of law that * * * no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.''

While the plaintiff was not entitled to rely upon the doctrine of res ipsa loquiture in her case against the defendant California Street Cable Railroad Co., Gerhart v. Southern California Gas Co., 56 Cal.App.2d 425, 132 P.2d 874, we believe it may be legitimately inferred from the testimony of the gripman that since the rails were clear, that an obstruction of the cable slot at the point where they intersect caused the sudden stopping of the car, and that only employees of the defendant California Street Cable Railroad Co. could have caused said obstruction. The causing of such an obstruction would constitute negligence. The trial court was accordingly not justified in taking the case against the California Street Cable Railroad Co. from the jury.

That the court gave an erroneous instruction at the conclusion of the case against the City and County of San Francisco, there can be no doubt. The instruction of which plaintiff complains, reads as follows: 'In law we recognized what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it. Therefore, if you find that this accident was unavoidable, your verdict shall be for the defendant.'

As a passenger for hire, the defendant City and County owed to plaintiff more than the duty of ordinary care as that term was defined elsewhere in the instructions. The defendant would be liable in damages for acts falling short of negligence as that term was defined in the instructions. The City and County owed to plaintiff the duty to 'use the utmost care and diligence' for her safe passage. Civil Code, § 2100. The care required of it was the highest that reasonably could have been exercised, consistent with the mode of transportation used, and the practical operation of its business as a carrier. Kline v. Santa Barbara, Etc., Ry. Co., 150 Cal. 741, 90 P. 125; Scarborough v. Urgo, 191 Cal. 341, 216 P. 584.

Ordinary care was defined in the instructions as 'that care which persons of ordinary prudence exercise in the management of their own affairs in order to avoid injury to themselves or to others.'

Negligence was defined as 'the doing to some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, actuated by those considerations which ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care in the management of ones property or person.' (Emphasis ours.) This definition is entirely accurate so far as it goes. Negligence, however, is not an absolute term, but a relative one--'relative to the circumstance of the time, of the place, and of the person or persons', Conner v. Southern Pacific Co., 38 Cal.2d 633, 636, 241 P.2d 535, 537, and when a common carrier is involved, we might add--relative to the status of/or legal relationship existing between the parties concerned.

Negligence, in so far as the conduct of a common carrier in its relationship to a passenger for hire is concerned, should be defined as any failure to exercise the utmost care and diligence for the safety of its...