We endeavored in the opinion to make our position free from ambiguity and uncertainty. Defendant urges that we carried the rule of presumptive negligence further than is warranted by any of the decisions of the supreme court of this state, and that our position is opposed to the rule laid down in well-considered cases in other states. That the point in controversy may clearly appear we quote from the petition: "If the facts testified to up to the point of injury are such only as would not, if the injury did not happen, themselves show any negligence or unusual operation, then the happening of the injury does not raise the presumption of such negligence." Quoting certain passages from the opinion, the petition further states: "The point we make and which we have sufficiently stated is that the other facts must show negligence, but even if the contrary view were correct, the evidence of the nature of plaintiff's fall would be quite insufficient to raise such presumption." Again: "It will be observed again, that the evidence of the fall of the plaintiff is by the court made the controlling consideration in determining negligence." Still further: "In other words, the passenger cannot, by falling down or falling off or sustaining an injury, assist in creating the *Page 327 presumption of negligence, and unless something exceptional or unusual appears independent of what happens to the passenger, the presumption of negligence is not raised." With this statement there need be no further doubt as to plaintiff's point, and we shall meet it as frankly and squarely. Happily, if we are wrong, defendant is not without the means of correcting the error.
Suppose a railroad train is slowing down at a station for the purpose of allowing passengers to alight and has nearly stopped. Suddenly the train jerks forward, and with such force as to throw the passengers, who are moving toward the doors, preparatory to alighting, with violence to the floor of the cars, breaking limbs, dislocating joints, fracturing skulls, and otherwise maiming and injuring them. Our position is that the nature and extent of the injury may be taken into consideration in determining the question of negligence of the carrier in operating the train, and whether the jerking was unusual. If in the operation of railway trains or street-cars their sudden jerking or jolting, when slowing down to stop, has been of such notorious character as to admonish passengers of the danger and would, as matter of common prudence, require them to keep their seats until the cars have come to a stop, we can see how the rule contended for might have some application. But no such thing is true. Passengers from street-cars are urged to alight quickly, and are encouraged to make preparations to do so by approaching exits before the car stops. This is common knowledge. If the rule was that street-car passengers should hold their seats until the car stops, it would take many more cars to perform the service, and such a rule would call for some sort of notice to passengers. But why should not the jury consider the circumstance of the injury itself, its nature and extent? Why is it not a legitimate fact tending to show whether the jolt or jerk of the car, causing the injury, was unusual or not? Unless it can be maintained (which it cannot) that street-cars, when about to stop, usually, and so generally as to be within the several knowledge of passengers, are so liable to jerk or jolt as to throw occupants to the ground if they prepare to alight, we do not think the rule we have laid down is unreasonable or unjust. In the case of Samuels v. California Street etc. Ry. Co.,124 Cal. 294, *Page 328 [56 P. 1115], the court took into consideration, on the question of negligence, the fact that two passengers, besides the plaintiff, were thrown from the car. Suppose in the present case there had been several passengers and all of them moving toward, or were on the dummy, with the view of alighting, and all of them had been thrown violently to the floor of the car, or had been pitched headlong from the platforms. Would these facts not have been admissible, and if admissible, for what purpose except to throw light upon the question of negligence? How else can the question of the carrier's negligence be within the means of the passenger to show presumptively or at all, in ordinary cases, except he be allowed for that purpose to show, not only that something happened to the car through the carrier's agency, but that he was injured thereby through no fault of his own? We are still of the opinion that it was competent, in the present case, to show the circumstances and nature of the injury as tending to assist the presumption of negligence on the part of the defendant which arose from evidence showing the sudden and unusual jolt.
Petitioner is not warranted in the statement that "the fall of the plaintiff is by the court made the controlling consideration in determining negligence." It was clearly shown in the opinion that "the mere happening of the injury to a passenger while riding on defendant's cars unaccompanied by any other fact would not, we think, be sufficient to raise a presumption that the injury was attributable to defendant's negligence. The injury should in some way be connected with the operation of the cars by defendant." It is beyond dispute that the jerking of the car in the present case was the cause of the injury. That much shown, the character of the injury might well tend to show that but for defendant's negligence it would not have happened.
Rehearing denied.
McLaughlin, J., and Buckles, J., concurred.
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 January 29, 1906. *Page 329