5 P.2d 77 | Cal. Ct. App. | 1931
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *261 THE COURT.
An appeal from a judgment entered upon a verdict of $6,500 in favor of plaintiff and against defendants.
On June 26, 1928, at the intersection of Sacramento and Maple Streets in San Francisco, the plaintiff received personal injuries when he was struck by an automobile owned by defendant Schwebel and operated by defendant Barrett.
As grounds for their appeal defendants claim that plaintiff was guilty of contributory negligence as a matter of law; that the court erred in admitting in evidence a certain ordinance of the city and county of San Francisco and in its instructions to the jury, and that plaintiff's counsel was guilty of prejudicial misconduct at the trial.
Plaintiff immediately before the accident was a passenger on a street-car traveling west on Sacramento Street. According to some of the witnesses the car stopped on Sacramento Street, its front end, from which plaintiff alighted, being about six feet within the intersection. It was testified by another witness that the car passed into the intersection a distance of about the length of the front platform. There was a conflict as to whether the car stopped before plaintiff alighted, but the testimony was sufficient to support an affirmative conclusion in that respect.
Defendant Barrett in the course of his employment was driving an automobile in the same direction and some distance behind the street-car, and as the car stopped he *262 turned to his right in an attempt to pass, and struck the plaintiff. It was also testified that no warning signal was given by Barrett, and that when the brakes were applied the automobile skidded a distance which was variously estimated from forty to eighty-five feet, and when he stopped the front of the automobile was about eighteen feet past the place where plaintiff, who had been thrown or carried some distance to the west by the automobile, was lying. Barrett testified that before he attempted to pass the car he had been traveling from fifteen to twenty feet behind at a speed of about fifteen to twenty miles an hour. According to the plaintiff, as he alighted he looked to his right and saw the automobile approaching some distance behind the car. He also heard the brakes applied and thought the driver intended to stop. In the meantime he had taken several steps toward the curb, and before he could save himself the automobile was upon him.
[1] Although it is the general rule that a greater degree of care must be observed by a pedestrian at a place other than an established crossing (Sheldon v. James,
[4] In view of all the circumstances the question here was properly one for the jury, and the evidence fairly supports their implied conclusion that plaintiff was not guilty of contributory negligence.
There was introduced in evidence over defendant's objection an ordinance of the city and county of San Francisco, regulating the operation of motor vehicles when overtaking street-cars which had stopped or were about to stop for the purpose of receiving or discharging passengers. It is claimed by defendants that the ordinance had no application to the facts of the case for the reason that the street-car had passed the usual stopping place, and that its admission in evidence was prejudicially erroneous.
[5] The ordinance made it the duty of a driver overtaking a street-car to bring his vehicle to a standstill whenever the car stopped for the purpose of receiving and discharging passengers, and this duty was not restricted to regular stopping places. As stated, some of the witnesses testified that the car had passed into the intersection; but, however this may be, it is well known that circumstances may make it necessary to discharge passengers at places other than the usual stopping points; and it clearly was not the intention to restrict the operation of the ordinance to the extent claimed by defendants. However, the court at their request charged that the ordinance had no applicability where a street-car stopped at a point other than approximately the usual point for receiving and discharging passengers, or where the operator of the automobile has no reasonable warning that a passenger is to be discharged; further, that if the jury found that the street-car had proceeded across Maple Street before discharging plaintiff as a passenger, and no reasonable warning was given defendant Barrett that a passenger was to be discharged at that point, then the provision of the ordinance that the driver must stop in the *264 rear of the street-car was not to be considered by the jury. The ordinance was in view of all the evidence properly admitted, and the instructions as to its application fully presented defendant's theory of the case, and were as favorable as the defendants had the right to demand.
[6] The court also instructed that failure to comply with an ordinance regulating the operation of motor vehicles upon the highways of San Francisco constituted negligence in itself; further, that if they found from the evidence that defendant Barrett violated the ordinance in question, and such violation proximately caused the injuries complained of, if any, and plaintiff was himself free from contributory negligence, he was entitled to recover. It is objected that the court did not qualify this instruction by stating that the violation of an ordinance may be explained or excused, citing Berkovitz v.American River Gravel Co.,
Objection is also made to an instruction that the ordinance made it the duty of drivers overtaking a street-car which had stopped to discharge passengers to stop their vehicles. What we have said regarding the admissibility of the ordinance in evidence and the instructions construing it applies to the above instruction, and requires no further discussion.
[7] Two instructions offered by defendants stating in substance that Barrett was not bound to drive his automobile so as to protect passengers who might jump from a street-car while in motion unless he had warning of such intention were refused. Barrett testified that plaintiff jumped from the car while it was in motion; and it was held in Brown v. *265 Brashear,
Plaintiff's counsel during his examination of several of the jurors on their voir dire asked whether they carried insurance or were interested in the Indemnity Insurance Company of North America, or acquainted with certain of its agents, naming them; also a physician, called as a witness for defendants and who made a physical examination of plaintiff, was asked on cross-examination as to who requested him to make the examination. The physician answered that he acted either at the request of defendants' attorneys or "the insurance company", — which, he did not remember.
[8] While it has been held that evidence that the defendant is insured against loss is not admissible, and that it would be improper for counsel to endeavor to get such fact before the jury by questions designed for that purpose, and that any unfairness in that respect might be regarded as prejudicial misconduct (Pierce v. United Gas Elec. Co.,
[9] The cross-examination of the physician was not improper as the jury had the right in determining his credibility to consider his interest in the case (27 Cal. Jur., Witnesses, sec. 96, p. 122).
[10] In view of the evidence as to plaintiff's injuries, his loss of time on that account, and the medical and hospital expense incurred by him, we cannot say that the verdict was excessive.
The implied findings that defendants were negligent, and against the defense that plaintiff was wanting in due care, are fairly supported, and no error is shown which would warrant the conclusion that the same resulted in a miscarriage of justice.
The judgment is affirmed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 10, 1931, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 7, 1932. *267