225 P. 775 | Cal. Ct. App. | 1924
This is an appeal from a judgment in favor of the plaintiff in the sum of six thousand dollars for personal injuries sustained by her when struck by an automobile driven by the defendant on one of the public streets of the city of Oakland. The facts of the case are that one rainy night in February, 1922, at about 7:45 P. M., plaintiff, a foot-passenger, endeavored to board a Telegraph Avenue street-car at a regular stopping place on Telegraph Avenue near Thirty-eighth Street. She stood upon the curb and looked to her left, watching for the approach of a car. As a car approached she went through the traffic to the street-car track, but the car failed to stop and she returned to the curb. She remained at the curb watching for the approach of another car from her left. When she saw a car leave the last stopping place, one block away, she again went through the traffic and took a position about two or three feet from the outer car rail where she awaited the approach of the car. While standing there she had an umbrella over her head to protect herself from the rain, and after taking that position she did not look to her left to observe the approach of other vehicles. Before she left the curb she noted that no other vehicles preceded the street-car as it came upon the track. While standing there she was struck by the defendant's automobile, which was traveling astraddle of the outer rail of the car line at a rate of speed of about thirty miles an hour. The force of the impact was so great that she was thrown or carried a distance of thirty feet and suffered injuries which were within the award of damages made by the jury. At the time of the collision the defendant was proceeding in an admittedly careless and negligent manner and in violation of the motor vehicle statute, without any warning of his approach, and with his vision obscured by the rain upon his windshield so that he did not observe the presence of the plaintiff until after she had been struck. The evidence of this negligence on the part of the defendant is so plain and unmistakable that the only ground urged *240 upon this appeal is that, conceding this, the plaintiff was guilty of contributory negligence. The only question, therefore, before us is whether the respondent was guilty of contributory negligence as a matter of law requiring us to set aside the verdict of the jury on that issue.
The case is closely allied in facts to that ofHaines v. Fewkes,
A similar case is Mann v. Scott,
[1] Here the undisputed facts are that the respondent, before she left her place of safety on the curb, looked in the direction of approaching traffic and saw that the street-car had left its last stopping place one block to her left *241 and that no automobile was traveling ahead of it. She had the right to assume, therefore, that any vehicle coming from that direction would observe the statutory regulation as to rate of speed and that, if any such vehicle attempted to pass the street-car at the intersection where she stood for the purpose of boarding the car, such vehicle would observe the provisions of the statute requiring it to pass at least six feet from the right running-board or steps of the street-car. Whether it was her right to assume that no vehicle would suddenly pass the street-car within the block and proceed upon its right of way at a rate of speed greatly in excess of the statutory rate, especially upon a dark rainy night, was a question which was properly left to the jury.
The case before us differs in this respect fromKlusman v. Pacific Elec. Ry. Co.,
[2] In support of the appeal the appellant insists that "the conclusion is irresistible that respondent, had she looked, could have seen and avoided the danger, and it is the sole purpose of this brief to show that it was her duty as a matter of law to look."
More than this is necessary to support a plea of contributory negligence. Mr. Justice Myers, in Gett v. Pacific Gas Elec.Co.,
Judgment affirmed.
*243Sturtevant, 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 15, 1924.
All the Justices concurred.