Combs

Combs sued to recover damages for personal injuries, and the appeal of the Los Angeles Railway Corporation attacks the judgment in his favor upon the ground that he was contributorily negligent as a matter of law. As in Satterlee v. Orange Glenn School District, ante p. 581 [ 177 P.2d 279 ], certain jury instructions are challenged upon the ground that they incorrectly state the law in regard to the effect of a plaintiff’s violation of a statute upon his cause of action for negligence.

The accident occurred when a streetcar operated by the railway company collided with an automobile operated by Joseph Commodore. Combs was standing on the step of the car and the impact threw him to the street. He named both the corporation and Commodore as defendants. Each of them denied the charge of negligence and, as a separate defense, pleaded contributory negligence.

As Combs explained the circumstances of his ease, late in the afternoon, he and several other persons were standing at a loading zone waiting for a streetcar. When it arrived, he made no observation as to the number of persons which it carried, nor did he notice that the rear platform was crowded. However, he saw several persons…

I concur in the judgment of affirmance, but as the majority opinion is based upon the unsound reasoning in the Satterlee case, ante, p. 581 [ 177 P.2d 279 ], from which I dissented, I cannot agree with the legal theory upon which said opinion is based.

Once it is conceded, as it is in the majority opinion, that the violation of a penal statute or ordinance by one seeking to recover civil damages, does not necessarily bar a recovery, there is no common sense or logic in talking about presumptions or presumptive negligence arising from evidence of such violation. A person involved in an accident may be guilty of violating several statutes or ordinances but such violations may have no bearing upon his alleged negligent conduct. For example, he may be driving an automobile without a driver’s license; his automobile may not have a current license number ; and he may be operating his automobile at night without a taillight and have a head-on collision. Obviously, none of these violations can be said to have any bearing upon negligent conduct, and evidence relating to them would be immaterial and irrelevant. Even when we consider a statute or ordinance relating to conduct directly…

I dissent. In my opinion plaintiff was guilty of contributory negligence as a matter of law. (See my concurring opinion in Satterlee v. Orange Glenn School District, ante, p. 581 [ 177 P.2d 279 ].) Under the instruction given by the trial court, riding on the streetcar steps in violation of the ordinance was merely evidence of negligence, and the jury was permitted to apply as a standard, the conduct of a man of ordinary prudence rather than the standard prescribed by the ordinance.

The principal issue in this case is whether the plaintiff was “riding” on the streetcar steps in violation of the ordinance. In Connard v. Pacific Elec. Ry. Co., 14 Cal.2d 375, 377-378 [ 94 P.2d 567 ], this court, construing the same ordinance, determined that the plaintiff in that case was not “riding” on the steps of a streetcar within the meaning of the ordinance if he used the steps preparatory to alighting therefrom after the car had already slowed down for a stop but “had not *614 quite come to a complete stop.” In that case the court stated: ‘ ‘ There is a clear distinction between the conduct of one who over a period of time deliberately stands or ‘rides’ on the steps of a moving car, and the…