Jones

This is an action for damages for personal injuries alleged to have been caused by defendant in negligently starting one of its cars after the car had stopped to allow passengers to alight therefrom.

By the verdict of a jury plaintiff was awarded $2,500 damages, and from the judgment rendered thereon the defendant appeals.

Appellant excepts to certain instructions given and to the refusal of the court to give others offered, and also contends that the damages are excessive.

Plaintiff is seventy-three years of age and at the time of the accident was a seamstress, earning $25 to $30 a week. She lived with her married daughter, Mrs. Holman, in Hyde Street, near Clay, in San Francisco. On the afternoon of May 26, 1919, in company with her daughter, she boarded an east-bound Clay Street cable ear at Sacramento and Fillmore Streets. The car had an inclosed section in the middle with open portions at each end. A long seat on each side of the open section is reached directly from the street by running-boards. The open sections of the car have wooden uprights to which are attached iron hand-bars. Plaintiff took a seat on the left rear portion of the open section and her daughter sat…

I dissent. In my opinion the trial court committed at least two prejudicial errors. It was claimed by the plaintiff that the defendant’s car had come to a stop and while the car was so stopped, and while she was in the act of alighting, .the car was started with a jerk which caused her injury. These allegations the defendant denied and also pleaded the contributory negligence of the plaintiff. On the trial of the case the plaintiff called the conductor as a witness. He stated that at the time in question he was standing at the back end of the car (which would be immediately behind the plain tiff). He also stated that while the car was at a standstill some passengers got off and then, “I see my platform clear and with my left arm I proceeded to go ahead, and seeing everything was clear I walked inside to get the rest of the fares that had boarded the car. . . . She [the plaintiff’s daughter] was clear off the car when I saw her. Everything was clear, and I proceeded down to collect one or two fares. ... At that time I saw no sign whatever of any other lady rise to get off or show any signs of getting off. . . . When I gave the two bells to go ahead I was standing to the rear.” When…