Walker

The action was one by a passenger for damages on account of personal injuries alleged to have been occasioned through the negligence of a common carrier. Upon the trial a verdict resulted in plaintiffs’ favor, and the trial court, upon a motion duly made, set aside such verdict and granted a new trial, from which order plaintiffs appeal.

The presumption of negligence which attaches when a passenger is injured through the use of instrumentalities employed by the carrier and under his care, requires the defendant to prove that the injury was without negligence on defendant’s part, and that the damage or injury has been occasioned by inevitable casualty or by some cause which human foresight could not prevent. (Kline v. Santa Barbara etc. Ry. Co., 150 Cal. 745 , [ 90 Pac. 125 ].) Defendant undertook to perform this duty, and evidence is in the record tending to show that the .accident was occasioned by the team, which was drawing the coach in which plaintiff was a passenger, becoming frightened at a loose horse in the highway and, becoming unmanageable, the coach was upset and the injury resulted. There was evidence further tending to show that the team used by defendant was safe…