Kellenberger

This is an appeal from an order granting a new trial. The action was brought to recover damages for injuries alleged to have been received by Ida Kellenberger, wife of her coplaintiff, on the eighth day of April, 1890, while a passenger on the cable car of the defendant. Plaintiff was on a Hayes street car, the gripman of which, as he approached the crossing of the Sutter street cable road on Larkin street, should, it appears, have “let go,’’ or released the cable, but was diverted from doing so by the perilous situation of a pedestrian on the track, and as a result did not let go until he went over the pulley, and then could not do so, and the grip struck the bumper in the Sutter street track, producing a concussion by which, as is alleged, plaintiff was thrown from her seat and against one of the seats on the opposite side of the car, and thereby injured.

Two issues only of importance are made by the pleadings: (1) Was defendant guilty of negligence 1 (2) Was plaintiff injured thereby ? Manifestly, both of these issues needed to be answered in the affirmative, to entitle plaintiff to recover. For if defendant was not negligent, or if, being negligent, plaintiff was not injured…