Bua

I dissent. The pretrial order specifies plaintiff’s claims that defendant driver was negligent in stopping his cab in the middle of the street, rather than in a place of safety for plaintiff to alight; in failing to assist plaintiff to alight; and in starting the cab while she was alighting. Plaintiff’s opening statement promised evidence on each of these points, and evidence as to each was in fact introduced. There is no indication in the record and no suggestion in the briefs that plaintiff withdrew or abandoned any of these claims. On motion for new trial, plaintiff was still contending that her obesity (she weighed 270 pounds) amounted to a handicap or disability requiring an instruction that defendant carrier was under a duty to give her special attention, care and assistance.

If the jury had returned a verdict for plaintiff, but had accompanied it by a special determination that the driver did not start the cab until after plaintiff left it, I have no doubt that the present majority, on the record now before us, would affirm, particularly in view of defendant carrier’s duty of utmost care. Thus I cannot accept the view that there is no evidence of negligence aside from that…

This is an appeal by defendants James Harding and the G.I. Taxi Company from an order granting plaintiff Josephine Bua a new trial.

On September 28, 1956, James Harding was driving a cab in the course of his employment by the G.I. Taxi Company. On that date the respondent was working the “graveyard shift” for the San Jose Cannery. The G.I. Taxicab Company by an agreement with the cannery sent cabs out to the plant at 4:45 a.m. to transport the female workers to their homes at the conclusion of the shift. On this morning appellant Harding picked up five passengers including respondent. Respondent sat in the back seat of the cab on the right and sitting on the same seat on the left was her daughter-in-law, Antonia Bua, who resided a few doors away from her. The cab arrived in front of respondent’s house at about 5 a.m. The evidence is conflicting as to whether the cab was stopped on the wrong side of the street or not, and whether it was stopped at the curb or towards the middle of the street. Appellant Harding testified that as he drove along respondent’s street that the Buas yelled “Stop, this is where we get out” and that he then stopped the cab; that thereupon the respondent…