I concur.
Although I am in accord with the judgment indicated in the opinion prepared and signed by Presiding Justice Conrey, reasoning from the authorities and general principles applicable to the facts of the case, I am unable to unreservedly subscribe to the "ratiocination" by which he is led to his conclusion.
Since it is possible that within the admitted facts of this case the jury might have determined that at the time when plaintiff sustained the injury of which she here complains she was a passenger of the defendant (Hart v. Fresno TractionCo., 175 Cal. 489 [167 P. 885]; Nilson v. Oakland TractionCo., 10 Cal.App. 103 [101 P. 413]), and assuming that such a conclusion had been so reached, inevitably it would follow that plaintiff was then entitled to such care on the part of the defendant to prevent her from being injured as is ordinarily legally required of a carrier toward its passengers. In other words, according to the statutory provisions of this state (sec. 2100, Civ. Code) the carrier was obliged to use the "utmost care and diligence" for the safe carriage of the passenger. In that connection, if after having reached the conclusion that as between plaintiff and the defendant the relationship of carrier and passenger existed, in the absence of any showing that the accident occurred by reason of inevitable casualty or some other cause which human care and foresight could not have prevented, or by the contributory negligence of plaintiff, it then became the further duty of the jury to determine whether "the utmost care and diligence" for the safe carriage of plaintiff had been exercised by the defendant, which duty necessarily included a consideration by the jury not only of the particular acts and conduct shown to have been performed by the motorman, the conductor, or the loader of the car of the defendant, but as well what particular act or thing (if any) omitted to be done by them, or by either of them, reasonably might have been performed by them or either of them, which would have constituted a compliance by the defendant with the statutory requirement that it use theutmost care and diligence to see that plaintiff sustained no injury during the time that the relationship of passenger *Page 717 and carrier existed between plaintiff and the defendant.
As is succinctly stated in 4 Cal. Jur. 980, where many authorities are cited in its support:
"It has been long and continuously settled that, in an action by a passenger against a carrier for injuries received a primafacie case is established when the plaintiff shows that he was injured while being carried as a passenger by the defendant, and that the injury was caused by the manner in which the defendant used or directed some agency or instrumentality under its control. This rule has been announced by the cases again and again. The occurrence of the accident raises a presumption of negligence which throws upon the carrier the burden of showing that the injury was sustained without any negligence on its part; that is, that the injury was occasioned by inevitable casualty or some other cause which human care and foresight could not prevent or by contributory negligence of the plaintiff, unless the proof on the part of the plaintiff himself tends to show that the injury was occasioned by one of these causes. This rule is knownas the doctrine of res ipsa loquitur."
Relying upon the accuracy of the foregoing statement of the law, to my mind it would seem inescapable that plaintiff was entitled to have given to the jury the instruction which was requested by her but refused by the trial court, and to which attention has been directed by Presiding Justice Conrey.
Neither "inevitable casualty" nor any cause "which human care and foresight could not prevent" was attempted to be shown by the defendant. For aught that appears, the "utmost care and diligence" required by the carrier for the safe carriage of the passenger was not exercised by the defendant. From which it would follow that at least a prima facie case of plain neglect of duty on the part of the defendant had been established, and that in the absence of a showing from the entire evidence in the case that plaintiff had been guilty of contributory negligence, she would be entitled to be compensated by a judgment for whatever damages she sustained.
Considering such evidence as is set forth in the opinion of Presiding Justice Conrey, it unquestionably appears *Page 718 that for a long time preceding the happening of the accident plaintiff was most familiar with the entire situation; that is to say, she habitually boarded a street-car at the place where the accident occurred; she knew that in following its regular route the R car turned the corner at that point, and that in so doing its rear end or "overhang" necessarily projected into the street considerably farther than it did when the car was not so engaged, and that if she maintained a position within the range of the "overhang", necessarily she would come into collision with the car, from which happening an injury might result to her. Nevertheless, with such knowledge on her part, at least partly because of the fact that she neglected to protect herself from being injured, the accident of which she here complains occurred. To my mind, it shows a clear case of contributory negligence on the part of plaintiff, which has the legal effect of precluding the recovery of a judgment for damages against the defendant. (Townsend v. Houston Elec. Co., (Tex. Civ. App.)154 S.W. 629.)
My ultimate conclusion is that although error was committed by the trial court in its refusal to give to the jury the instruction to which attention has been directed, because of the fact that such error did not result in a miscarriage of justice, the judgment should be affirmed. (Sec. 4 1/2, art. VI, Const.)
A petition for a rehearing of this cause was denied by the District Court of Appeal on August 27, 1931.