I dissent. In my opinion the trial court committed at least two prejudicial errors. It was claimed by the plaintiff that the defendant's car had come to a stop and while the car was so stopped, and while she was in the act of alighting, the car was started with a jerk which caused her injury. These allegations the defendant denied and also pleaded the contributory negligence of the plaintiff. On the trial of the case the plaintiff called the conductor as a witness. He stated that at the time in question he was standing at the back end of the car (which would be immediately behind the plaintiff). *Page 756 He also stated that while the car was at a standstill some passengers got off and then, "I see my platform clear and with my left arm I proceeded to go ahead, and seeing everything was clear I walked inside to get the rest of the fares that had boarded the car. . . . She [the plaintiff's daughter] was clear off the car when I saw her. Everything was clear, and I proceeded down to collect one or two fares. . . . At that time I saw no sign whatever of any other lady rise to get off or show any signs of getting off. . . . When I gave the two bells to go ahead I was standing to the rear." When the case stood thus, the trial court instructed the jury as follows: "The carrier of passengers is required to exercise the highest degree of care in their transportation, and is responsible for injuries received by them while in the course of transportation which might have been avoided by ordinary care. Hence, when it is shown that the injury to the passenger was caused by the act of the carrier, in operating the instrumentalities employed in its business, there is 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 instruction was highly prejudicial. It violated the rule in Steele v.Pacific Electric Ry. Co., 168 Cal. 375 [143 P. 718]. Furthermore, the instruction states "there is a presumption of negligence." If there is, it must somewhere be printed in the statutes. (Code Civ. Proc., sec. 1959.) But one will search the statutes in vain to find any such provision printed therein.
It is patent from the record that conceding that an accident had occurred, and conceding that the plaintiff had been injured, and conceding that the injury occurred through the fault of the defendant, still it was the theory of the defense that the plaintiff's injury was slight; that she had wholly recovered, and that her claim for damages was excessive. When the parties stood before the court making these conflicting contentions, the court instructed the jury as follows: "If you should find from the evidence that plaintiff has sustained any injuries because of the negligence of defendant and its employees, and should also find from the evidence that by reason of such injuries, plaintiff has, since receiving the same, and does now, in good faith, suffer from the reasonable apprehension that she *Page 757 will in the future be permanently disabled as the natural and proximate result of such injuries, then I instruct you that such apprehended disability is an element of damages you may take into consideration in arriving at the amount of your verdict." The instruction was clearly erroneous and in direct conflict with the rule as stated in Pouchan v. Godeau, 167 Cal. 692, 695 [140 P. 952]. It cannot be ascertained from the record whether the jury made and based its award on the claimed "apprehension" as to the future, or based its award on what had occurred down to the date of the trial.
I think the case should be reversed and remanded for a new trial.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 29, 1921.
All the Justices concurred.
Lawlor, J., was absent, and Richards, J., pro tem., was acting.