L.A. No. 1143.
July 17, 1903.
APPEAL from an order of the superior court of Los Angeles County granting a new trial. Waldo M. York, Judge.
The facts are stated in the opinion.
John M. Miller, Herbert Cutler Brown, Frank G. Bryant, and Miller Brown, for Appellant.
E.H. Lamme, E.E. Milliken, and R.H.F. Variel, for Respondent.
Action to recover damages for the death of plaintiff's son, seven years of age, caused by his being run over by one of the defendant's electric street-cars in the city of Los Angeles.
Plaintiff obtained a verdict and judgment, and now appeals from an order granting the defendant's motion for a new trial.
One of the grounds of the motion was insufficiency of the evidence to justify the verdict. The order granting the motion was general, as shown by the transcript, and did not specify upon what ground it was based.
The testimony was substantially conflicting, both as to the negligence of the employees of the company and as to the contributory negligence of the child. In this condition of the record, it was for the trial judge to say where the preponderance of evidence lay. The rule is well settled that the order granting a new trial, being general in its terms, will not be disturbed "if it could have been properly granted upon any of the grounds assigned." (Tibbetts Bros. Sons v. Power, 121 Cal. 7.) In support of the order appealed from, respondent further contends the court erred in the giving of instructions. As the order must be upheld on the ground already suggested, it is perhaps not essential that this latter contention should be considered. It may be well, however, as a new trial is to be had, here to say that, as to the first instruction, the objection to it can be easily obviated on a new trial by adding to it such words as will imply the condition of the motorman having seen the boy "in a position of danger" in time to avoid injuring him.
The second instruction objected to reads as follows: "You are instructed that defendant was under no obligation to supply the safest or most effective brakes that could be obtained, or to use the utmost care in keeping the brakes on its cars in repair, but was bound to use only ordinary care in the selection of its brakes and in maintaining and keeping the same in repair; but ordinary care in such a case requires the care usually exercised in the operation of electric street-car lines; and it is the duty of a party in operating an electric car to use the best appliances in common use and the best brakes in common use, and to exercise great care in keeping its appliances for stopping cars in good condition."
We think the law should be, and is, as stated in this instruction. Of course, a street-car cannot be operated upon the public streets of a great city with any degree of safety to pedestrians and others, except by "keeping its appliances for stopping cars in good condition." Therefore, ordinary prudence requires that "great care" should be exercised in this direction.
Upon the ground first stated we advise that the order appealed from be affirmed.
Smith, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
McFarland, J., Lorigan, J., Henshaw, J.