Civil No. 501. Third Appellate District. July 10, 1909. ROSIE JAMES (a Minor), by George James, Her Guardian ad litem, Plaintiff and Respondent, v. OAKLAND TRACTION COMPANY (a Corporation), Defendant and Appellant.

ACTION FOR DAMAGES-PERSONAL INJURIES-FALL FROM STREET CAR-NEGLIGENCE-EXCESSIVE RATE OF TRAVEL-VERDICT SUPPORTED BY EVIDENCE.-It is held, in this action for damages for personal injuries from being hurled from a standing position on the outside of a crowded street car, as a result of the rapidity with which the car was travelling, that the evidence is sufficient to support the verdict.

ID.-ID.-ID.-ID.-CIRCUMSTANCES OF ACCIDENT-TESTIMONY OF PLAINTIFF PROBABILITY.—It is also held, that the claim as to the insufficiency of the evidence, based upon the contention that the testimony of the plaintiff and her witnesses as to the circumstances under which the accident occurred is inherently improbable, cannot be said to be such upon its face or in its nature.

ID.-ID.—ID.-ID.-ID.-EVIDENCE-ABSENCE OF ERROR.-It is also held, that the claim that the twenty rulings of the court receiving and rejecting evidence were prejudicially erroneous, is without merit. ID.-ID.-ID.-ID.-ID.-STATUTE FIXING MAXIMUM RATE OF SPEED -REPEAL SUBSEQUENT TO ACCIDENT-EFFECT OF.-The repeal, subsequent to the happening of an accident, of the portion of section 501 of the Civil Code fixing the maximum rate of speed of street cars when travelling over the streets of a city, does not operate retrospectively on the cause of action arising from such accident.

ID.-ID.-ID.-ID.-ID.-ID.-STATUTE A RULE OF PROPERTY AS TO RIGHTS ARISING PRIOR TO REPEAL.-The repealed provision of section 501 of the Civil Code, with reference to the rate of speed to which cars were limited in travelling over the streets of cities, is a rule of property, as to rights of action arising from injuries for violation of such provision prior to the repeal.

ID.-ID.-ID.-ID.-ID.-STATUTE IN FORCE AT TIME OF CONTRACT OF CARRIAGE PART OF.-The law regulating the business of transportation of passengers by street railroad corporations subsisting at the time and place of the måking of a contract of carriage and where such contract is to be performed, enters into and forms a part of it, as if such law was expressly referred to, or incorporated in its terms.

ID.-ID.-RIGHTS OF ACTION FOR INJURIES-VESTING OF.-Upon receiving personal injuries from accidents occasioned by negligence, the right to institute an action vests immediately, independent of statute.

ID.-ID.-ID.-ID.-ID.-DAMAGES NOT EXCESSIVE.-It is held in this action that an award of $15,000 damages was not excessive, as a matter of law.

ID.-UNLIQUIDATED DAMAGES FOR TORTS-MEASURE OF.--In actions for personal torts, the law does not attempt to fix any precise rules for the measurement of damages, but, from the necessity of the case, leaves their assessment to the good sense and unbiased judgment of the jury.

ID.-NEW TRIAL-NEWLY DISCOVERED EVIDENCE-DISCRETION-APPEAL. The granting or refusing a motion for a new trial on the ground of newly discovered evidence is a question committed to the sound legal discretion of the trial court, and before an interference with the exercise of such discretion by an appellate court can be justified, there must appear from the record a plain and palpable abuse thereof.

ID.-ID.-ID.-ESSENTIAL REQUISITES.-Where it appears that the diligence required by the statute for the procurement of the alleged newly discovered evidence before the beginning of the trial has not been exercised, or that the evidence is merely cumulative, or the only office of such evidence is to impeach an adverse witness, the ruling of the court will not be disturbed.

ID.-ID.-ID.—ID.-ABSENCE OF IN CASE AT BAR.-It is held in this case that the showing made was wanting in every one of such essentials.

CONSTRUCTION-PROSPECTIVE

ID.-STATUTORY OPERATION.-Whenever a statute is susceptible, without doing violence to its express terms, of being understood, either prospectively or retrospectively, courts invariably adopt the former construction.

ID.-CONSTITUTIONAL LAW-VESTED RIGHTS OF ACTION-POWER OF LEGISLATURE.-It is not within the constitutional competency of the legislature to annul by statute any legal ground on which a previous action is founded, or to create a new bar by which said action may be defeated.

ID.-EVIDENCE-PREPONDERANCE OF PROOF.-The testimony which produces conviction in the unprejudiced minds of the jurors represents the preponderance of proof, regardless of the number of witnesses from whom it proceeds.

ID.-ID.-DISCUSSION OF EVIDENCE-APPEAL-WHEN LOST LABOR.— A critical and analytical discussion of the evidence in a case for the purpose of demonstrating the utter unreliability of the testimony from which the verdict was decided, when addressed to a court of review, is lost labor.

Appeal from the Superior Court of Alameda County-Harry A. Melvin, Judge.

For Appellant-Harmon Bell.

For Respondent-M. C. Chapman, Reid & Nusbaumer.

This is an action for damages for personal injuries alleged to have been inflicted upon the plaintiff through the negligence of the defendant.

The cause was tried by a jury, and a verdict returned in favor of the plaintiff in the sum of $15,000.00.

The defendant appeals from the judgment entered in accordance with the terms of said verdict and from the order denying it a new trial.

A reversal of the judgment and the order is insisted upon because the evidence, it is claimed, is insufficient to justify the verdict, and because of alleged erroneous rulings admitting and rejecting certain testimony and for giving and refusing to give certain instructions.

1. The claim as to the insufficiency of the evidence to support the verdict is founded upon the contention that the testimony of the plaintiff and of the other witnesses testifying in her behalf describing the circumstances under which the accident occurred is inherently improbable. It is, therefore, the position of counsel for the appellant that there is not that conflict in the evidence upon the salient points in the case which would preclude, under our constitutional provision confining the appellate jurisdiction of courts of appeal in this state to the consideration of questions of law alone, a review of the evidence and a determination by this court that, as a matter of law, the verdict is unwarranted and unjustified under the proofs.

It may be just as well to declare at the outset that we are unable to perceive in the story of the plaintiff and that of her witnesses, detailing the circumstances of the accident, anything which would authorize this court to say that they bear upon their face the earmarks of improbability. Counsel for appellant devotes much space in his briefs to a critical and an analytical discussion

of the evidence for the purpose of demonstrating the utter unreliability of the testimony from which the verdict was, manifestly, deduced. Addressed to a jury, as the sole arbiters of the questions of fact, the argument would be appropriate; but when addressed to a court of review, under our system, it is lost labor. It is true, as appellant declares, that by far the larger number of witnesses testified favorably to its contention or the theory upon which it undertakes to account for the accident; but it is only stating a commonplace to say that the preponderance of evidence in a civil case is not determinable by the number of witnesses introduced to support the affirmative of the issue, and, indeed, our code so expressly provides (subd. 2, sec. 2061, Code Civ. Proc.); but, tested by those rules which were established and are approved by long usage as the best and the surest means of facilitating such determination, that testimony which produces conviction in the unprejudiced minds of the jurors represents the preponderance of proof, regardless of the number of witnesses from whom it proceeds, whether from one or a hundred.

We shall not undertake to follow counsel in his argument of this feature of the case; nor shall we examine minutely in this opinion the record evidence. It will be sufficient to state in substance the evidence adduced in support of the averments of the complaint and from which the jury, obviously, reached the conclusion represented by their verdict.

The accident occurred in the city of Oakland on the evening of the 26th day of April, 1900. It appears that on that evening (a number of cars of the defendant having previously been chartered for that purpose) a "trolley ride" or an excursion was conducted by the "Maccabees", a fraternal organization. The cars left the Masonic Temple in East Oakland early in the evening, and were so "crowded" that all the seats inside and in the open spaces of the cars as well as all available "standing-room" were occupied. The plaintiff, her mother, a sister and a brother were in one of the cars. The route of the cars was from East Oakland to Alameda and thence to Berkeley, where the plaintiff, her mother, sister and brother changed to another car which carried them back to Oakland by way of Grove street. The defendant, at the time of the accident, maintained and operated a double track on said street. The car on which the plaintiff was riding was known and numbered as car No. 139, and was traveling south on Grove street, on the west track. When this car reached Twenty-seventh street, car No. 125, traveling on the east track and going in the opposite direction or northerly, came along, and at this juncture and as the two cars were passing each other, a crash and the sound of breaking glass was heard. The two cars came to a stop and the respondent, having been by some means thrown from the car on which she was riding, was found lying in the street north of car No. 139. She was unconscious and the flesh was almost entirely torn from one side of her face.

The testimony of all the witnesses for the plaintiff was to the effect that the car on which plaintiff was riding had so many passengers aboard that there was scarcely "standing-room" left; that the car, at the time plaintiff fell or was hurled to the ground,

was traveling at a high rate of speed, the witnesses for plaintiff estimating the speed of the car variously at the rate of from fifteen to twenty-five miles per hour. The evidence submitted by plaintiff further shows that the car at and near the point at which the accident occurred swayed back and forth from one side of the track to the other, and, as some of the witnesses put it, "bobbed up and down and pitched" very much after the fashion, we infer, of the movements of a bark sailing over a high sea.

The plaintiff's testimony is, in part, as follows: "Coming from Berkeley to the point of the accident I was on the front of the car on the east side. There was no one to the east of me. . When I first boarded this car I came on to the rear and went through the car to the door, in the position where I was standing at the time I was pitched from the car. When I went through the car all the seats were occupied excepting the one my mother sat in. . . . I occupied the same position from the time I went outside until the time I was pitched from the car. The window that I had my back against was protected by a few iron rods. I had one of my hands behind me, holding on to the iron bars going across the window. . . . I had hold of the bar from the time we left the power house until the time I was thrown from the car. . . . The car was going at a swift rate, and was swaying and pitching from side to side, and it appeared to me just when it landed on the east side of the track it was not over to the west side of the track and back again. It was swaying, jolting and jerking, and the general condition as to speed was going faster, very fast, it appeared to me. I was pitched from the car by the

force of the swaying and rolling. I don't know what happened. I remember the sensation was just as if I was going up in a swing. I lost consciousness then. I can't remember of having been struck by anything."

The theory of the defense is that the plaintiff was standing on one of the steps of the car at the moment the accident occurred and was leaning out from the car, looking back at a car following the one on which she was riding, and that her body was struck by the car going north, thus causing her to be thrown to the ground and thus sustaining the injuries she received. There was testimony received on behalf of the defendant supporting this theory; but the plaintiff positively denied that she was at any time during the course of the trip from Berkeley to the point at which she received her injuries standing on one of the steps of the car or that she leaned out so that her body could have been struck by the northbound car. She declared, as we have seen, that she remained all the while standing on the front platform of the car, with her back against the front window on the east side, holding on with one hand to one of the iron bars crossing said window. In this, as shown, she was corroborated by a number of her own witnesses.

The defense also introduced testimony showing that the track over which the accident happened was then in excellent condition; that there was no swaying or pitching or "jolting" by the car at that time; that the car was traveling at a moderate rate of speednot over ten miles an hour, some of the witnesses declared. In short, the important testimony introduced in support of the allega

tions of the complaint was flatly contradicted by the witnesses for the defense.

It is thus readily perceivable that there exists a substantial conflict in the evidence, and that unless, as contended by the appellant, it can be said that the testimony presented by the plaintiff is, upon its face, or in its very nature, improbable, there is no room for an interference by this court with the verdict upon the ground of the insufficiency of the evidence to justify it. And, as we have declared, it cannot be said that plaintiff's evidence is inherently improbable. To the contrary, if the car on which she was riding and from which she fell or was thrown to the ground was traveling at the rate of twenty or twenty-five miles an hour, and as a result of the rapidity with which it was going the car swayed from one side of the track to the other and pitched forward, etc., in the manner described by plaintiff's witnesses, the story of the circumstances under which the accident happened as told by plaintiff and her witnesses is, in our opinion, a most probable one. Indeed, assuming the plaintiff's testimony to be true, which we are required to do, since the jury so found, it is only to be wondered that the car did not leave the track altogether; and it is no matter of surprise that a passenger standing in the position which plaintiff claimed to have occupied on the car should have been hurled from the car under the circumstances disclosed by the evidence she presented.

2. There is nothing in the claim that the twenty rulings of the court receiving and rejecting certain evidence are prejudicially erroneous. Most of these rulings were upon objections that the testimony offered in rebuttal of the defendant's case was not in fact proper rebuttal, and in a number of instances it is objected that the facts thus sought to be established were brought out by plaintiff in her original case. We have been unable, after a careful examination of the rulings complained of, to discover any testimony received at the behest of the plaintiff after the close of the defendant's case which was not relevant, material and, therefore, proper. For example, certain witnesses for the defendant testified that the plaintiff during the course of the "trolley-ride" stood upon one of the steps of the car and engaged herself in stooping and attempting to catch hold of the grass growing near the track as the car was in motion; that she was warned that if she did not get upon the car or go "inside" she might probably fall from the car. In rebuttal, over the objection of counsel for the appellant, witnesses were permitted to testify that she was not at any time occupying a position on one of the steps, nor was she at any time cautioned against riding on the step or requested to get on the platform of the car, nor did she attempt to catch hold of the grass growing alongside of the track while the car was in motion. This was clearly relevant testimony, and even if these facts were brought out in her original case, either through direct or cross-examination, their admission in rebuttal, while in such case perhaps unnecessary, could not, obviously, have been harmful to the defendant. It is so manifest from a mere examination of the alleged errors involved in the rulings of which complaint is made that the defendant could not have been prejudiced thereby, even if it may be conceded that