Dwyer

Plaintiff Mrs. Dwyer was injured by collision with a street-car of respondent under circumstances which may be described in general terms as follows : At the corner of Seventh and Mateo Streets, in the city of Los Angeles, the route of travel for the streetcars of respondent makes a turn whereby north-bound cars on Mateo Street, when they reach said intersection, turn to the left and then travel westward on Seventh Street. From this it results that persons intending' to travel westward on Seventh Street as passengers on respondent’s cars are required to enter the ears at their stopping point at the southeast corner of the intersection, and at or near the point where the cars make their left turn. At the time of the accident in which Mrs. Dwyer (hereinafter called appellant) was injured, there were two lines of cars, one designated J cars and the other designated R cars (according to their respective routings), which regularly came to this intersection from the south. On the occasion of this accident appellant had come to this corner for the purpose of becoming a passenger on a J car. The principal place of entry for passengers on these cars was at the rear end of the car, where…

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 Traction Co., 175 Cal. 489 [ 167 Pac. 885 ]; Nilson v. Oakland Traction Co., 10 Cal. App. 103 [ 101 Pac. 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…