225 P. 875 | Cal. Ct. App. | 1924
In this case the defendant city appeals from a judgment rendered in favor of the plaintiff. *257 The judgment was for damages rendered in a personal injury case. In his complaint the plaintiff charged that the injuries were caused by the negligent operation of one of the street-cars owned by the defendant. In its answer the defendant denied all allegations of negligence which were pleaded in the complaint and affirmatively pleaded the contributory negligence of the plaintiff. Both parties introduced evidence in support of their respective allegations and the trial court gave instructions to the jury on all of the issues made by the pleadings. The jury returned a general verdict in favor of the plaintiff.
At this time the appellant makes one point and that point is to the effect that the evidence did not show that the defendant was guilty of negligence, but it did show that the plaintiff was guilty of negligence.
Geary Street runs east and west and there is located in the street a double set of tracks; the northerly track is used for cars traveling in a westerly direction and the southerly track is used for cars traveling in an easterly direction. Between the cross-streets, Presidio Avenue and Masonic Avenue, the defendant maintains a car-barn. From the northerly track there are switches on which a car can be drawn from that track into the car-barn. On the morning of November 18, 1918, the plaintiff was driving a taxicab containing some passengers. He had picked up his passengers on upper Market Street and was on the way to his point of destination, which was a house out near the beach toward the westerly end of Geary Street. He drove out Geary Street. As he did so, one of the street-cars of the defendant was being switched back from Masonic Avenue easterly along the northerly or out-bound track on Geary Street toward the car-barn where it was to be turned in for the night. It was standing, or almost imperceptibly moving, when the respondent drove his taxicab westerly along Geary Street. There was no other traffic at that hour of the night. The parties make no issue to the effect that the car did not have a right to be in the place where it was, but the fact is conceded by both parties. As the plaintiff drove westerly the street-car was ahead of him on the northerly track. It had no headlight on the eastern end. It had lights inside which shone out through the glass windows. At the point where the car was located the street is broad and there is *258 an abundance of traveling space on each side of the tracks. As the plaintiff proceeded on his way he could see the street-car ahead on the northerly track, but there is no evidence that during that time the car made any motion indicating that it was not outward bound. The plaintiff drove past the municipal car-barn toward the ocean. While he was so driving he proceeded to pass the car in question on the right-hand side thereof. He assumed that the car was going in the same direction that he was going. Whereas, although the car was on the track used by cars going in a westerly direction the operator of the car was in the act of moving it in an easterly direction. But the testimony is all one way to the effect that the plaintiff did not know that fact, nor was there anything to call such fact to his attention. There was no headlight on the easterly end of the car; there was no person on the easterly end of the car; no gong was sounded and no warning of any kind was given indicating the direction the car was moving. The operator in charge of the car stood on the west platform driving the car in an easterly direction. In other words, the street-car without a headlight, without sounding a gong or bell, and without giving any other kind of a signal, was being backed in an easterly direction along a street-car track customarily used by westerly-bound cars, and at that time the car had no person in the position of a lookout in the direction in which the car was traveling. When the plaintiff had reached a position on the right-hand side of the street-car, the car slowly moved eastward and, at the same time taking the curve, the overhang of the end of the car was projected outward from the general line of the street-car track in such a manner and to such an extent that the corner of the car ran into and collided with the plaintiff sitting at the wheel of his taxicab. Immediately before the impact the automobile was running parallel with the tracks and five or six feet north.
[1] We shall address ourselves first to the claim that the plaintiff was guilty of contributory negligence. The claim of the defendant on this subject is that the plaintiff was guilty of contributory negligence in driving so close to the defendant's car when he was not compelled under the circumstances to do so. In the case of O'Connor v. UnitedRailroads,
[2] Turning to the issue of negligence on the part of the defendant it will be noted that at the time of the accident the defendant's car was being operated backward without any audible warning, and without notice by flagging or otherwise, nevertheless, the defendant claims that such facts show no negligence as a matter of law. In this contention we think that the appellant is in error. In the case of Swain v. FourteenthSt. R. R. Co.,
[3] When, as in the instant case, the street-car is not being operated in the ordinary and usual direction, but is *260
being backed, the necessity for the application of the same rule is not less but is greater. Where, as here, a usual practice or custom has obtained, and where, as here, the claim is made that one of the parties has, to the discomfiture of the other, without notice, departed from the usual custom or practice, the courts have by an unbroken line of decisions held that the question of negligence on the part of the defendant, and the question of contributory negligence on the part of the plaintiff, are both questions for the jury to determine in the light of all of the facts, including the evidence tending to establish the alleged custom or practice and the alleged deviation therefrom. (Lawyer v. Los Angeles Pacific Co.,
We find no error in the record. The judgment is affirmed.
Nourse, J., and Langdon, P. J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 19, 1924.