Fowler v. Key System Transit Lines

Supreme Court of California · 1951 · Torts

TortsNegligenceContributory NegligenceEvidence of Customcustomusagenegligencecontributory negligence

Facts

Plaintiff, a 70-year-old passenger, signaled to leave defendant's bus at San Jose Avenue and Paru Street on a dark, dimly lit evening. Instead of stopping within the flat crosswalk area, the bus stopped slightly west of it, and plaintiff stepped from the front door into an approximately eight-inch-deep, rough gutter containing cobblestones and debris, lost her balance, fell, and fractured her hip. Plaintiff offered testimony from witnesses that defendant's buses customarily stopped within the crosswalk at that location, where passengers could step onto a flat surface rather than into the gutter. The trial court struck that testimony.

Issue

Whether evidence of defendant bus line's customary stopping place was admissible on the issues of defendant's negligence and plaintiff's contributory negligence, even though the alleged custom may have involved repeated violations of Vehicle Code section 586 prohibiting stopping on a crosswalk. Also, whether plaintiff's failure to plead the custom barred its use to rebut contributory negligence.

Rule

Evidence of custom is admissible in negligence cases for its bearing on both negligence and contributory negligence. A defendant's own customary practice may be considered as part of the circumstances known to the parties and as a standard of safety the defendant adopted for itself, and such evidence does not become inadmissible merely because the custom also tends to show repeated statutory violations, so long as it is not offered to nullify or excuse violation of the statute. Where the evidence is offered to refute contributory negligence, failure to plead the custom is not decisive.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Sacramento, Lena Ortiz regularly rides a shuttle operated by Riverbend Transit Co. to a stop where the shuttle has always pulled alongside a paved boarding pad, but one rainy evening the driver stops several feet short beside a broken asphalt drainage channel, and Lena twists her ankle while stepping down.

If Lena offers testimony from regular riders that Riverbend Transit Co. usually stops beside the boarding pad, and the company objects that this is irrelevant because negligence must be judged only by general reasonableness, how should the court rule?

Explanation. Evidence of a defendant’s own custom is ordinarily admissible in negligence cases. The majority treated the carrier’s regular stopping practice as relevant because it could show a self-adopted standard of safety and a departure from it. The evidence need not be an industrywide custom, and it is relevant even if not offered to establish negligence per se.