221 P. 955 | Cal. Ct. App. | 1923
This is an appeal from a judgment of nonsuit in an action for personal injuries sustained by plaintiff and alleged to have been proximately caused by the negligence of defendants.
The facts appearing from the evidence are in part as follows: Defendant Market Street Railway Company operated a single-track cable railway along the center of Sacramento Street from the Embarcadero to Drumm Street, and beyond, on which its cars traveled westerly. Prior to the accident defendant Spring Valley Water Company had excavated a trench about five feet wide and six to eight feet deep on the north side of Sacramento Street, which commenced about two feet east of Drumm Street and extended easterly some thirty feet. The dirt from the trench was piled upon the south side thereof and at the time of the accident *428 the pile came to a point less than a foot from the northerly rail of the car tracks and to the northerly edge of the running-board of the cable cars. The pile was thirty feet long and about five or six feet high. At the time of the accident the Water Company had not placed any lights on the top of the pile, or at any place where light could be thrown on its southerly side. This work of excavation was being done by the Water Company without a permit from the board of public works in violation of an ordinance of the city and county of San Francisco (Ordinance No. 1461, N. S.). Furthermore, the position of the dirt pile, less than a foot away from the car track, was also violative of said ordinance of the city and county of San Francisco, which provided that "in no case shall they [materials and appliances] be placed within four feet six inches of the outer rail of any street railroad track."
On the afternoon of October 22, 1921, plaintiff, a man then about seventy-three years of age, left his residence at the Scandinavian Sailors' Home on the east side of Drumm Street, between Clay and Sacramento, to go to Alameda, California. He proceeded along the sidewalk (which was then open) on the north side of Sacramento Street on his way to the Ferry building. He attempted to return to his residence about 9 o'clock upon the same evening. Upon leaving the Ferry building he walked along the northerly sidewalk on Sacramento Street until he reached a point about forty feet easterly from Drumm Street, where he found that a barricade had been thrown across the sidewalk. He did not then know and had no means of knowing the position of the dirt with relation to the car track. Because of the barricade across the sidewalk plaintiff left the sidewalk and skirted the dirt pile, looking for a passage to go through until he came to the easterly end of said pile, when he again turned westerly toward Drumm Street, walking along the south side of the dirt pile, with his left foot on the northerly rail of the car track and his right foot in the dirt. The south side of the street was obstructed by a line of dirt wagons which came to about five feet of the southerly car rail. Plaintiff had thus walked halfway along the pile — some fifteen feet — when he heard the noise of a cable car approaching him from behind. No warning bell had been sounded by the motorman and plaintiff was not made aware *429 of the proximity of the car until, as he testified, it was almost "on top" of him, or within three or four or five feet of him, when the noise incidental to the operation of the car arrested his attention. Plaintiff explained upon the witness-stand that as the street-car with its running-board was about six feet wide and traveling faster than he could move, he could not cross the track to the south side thereof — a place of safety — and so he attempted to get off the track upon the north side by climbing upon the piled-up dirt which blocked his escape. He attempted to climb upon this pile of dirt because the Water Company had not left sufficient space between the track and the dirt upon which he could stand. He succeeded in getting partly up the dirt pile, which was several feet high and sloped away from the track. The front of the car passed plaintiff, but before the car had cleared him the dirt slid and he was brought into such a position that he was struck by the side of the moving street-car, sustaining severe injuries.
Plaintiff testified that before leaving the sidewalk he did not look toward the Ferry building to see if a cable car was approaching on Sacramento Street, because he did not intend to cross the street, but merely intended to find a passage through the dirt pile. Because of the position of the dirt pile, however, plaintiff found no place along which he could proceed westward until he had reached the northerly rail of the street-car track.
Upon substantially these facts the trial court granted the motions of defendants for nonsuits. Appellant contends that the order granting the motions for nonsuits was improperly made, as the facts hereinbefore set forth warrant a finding by a jury that the defendant Water Company was negligent in creating a nuisance in dangerous proximity to the car track in violation of an ordinance and that the defendant Railway Company was negligent in failing to maintain a lookout and to give plaintiff timely warning and notice of the approach of the car, as required by ordinance, and in failing to stop the car after discovering plaintiff's position of danger so as to afford him an opportunity of placing himself in a position of safety, and that the plaintiff's injuries were proximately caused by such concurring negligence upon the part of both defendants. *430
[1] It seems to us that a jury might have drawn a reasonable conclusion that the negligence of the defendant Water Company in maintaining a dirt pile so close to the railroad track in violation of law was a concurring cause of the injury to plaintiff. Said defendant had blocked the sidewalk, thus requiring pedestrians either to cross the street or to skirt the dirt pile and proceed upon their way along its southern edge. Plaintiff chose to do the latter and no contention is made that his action in selecting this route was negligent as a matter of law. [2] Plaintiff had no knowledge of the extent or position of the dirt pile or of its proximity to the street-car track, and the mere fact that he had noticed the dirt piled upon the street when he left his home to go to Alameda in the morning does not charge him with such knowledge as would make his attempt to skirt the dirt pile negligent as a matter of law. (Meindersee v. Meyers,
We now come to a consideration of the evidence with reference to the liability of the defendant Railway Company.[3] We shall eliminate at the outset the contention of respondents that plaintiff was guilty of negligence as a matter of law in failing to look toward the Ferry building *431
for an approaching car before stepping upon the track. It is important in this connection to recall that plaintiff testified that he did not look toward the Ferry building to discover an approaching car, if any, because he did not intend to cross the street. He expressed his belief that the Water Company should have left a place for one to walk between the dirt obstruction and the track. It is fair to assume from his testimony that he expected to find the pile of dirt at a safe distance from the track, as required by law; and had he found this space clear and proceeded along it, there would have been no necessity for him to look behind for an approaching car. But quite apart from these considerations, we do not think that plaintiff's failure to look for this car convicts him of contributory negligence as a matter of law. In the case of Bidwell v. Los Angeles etc. Ry.Co.,
In the case of Mann v. Scott,
[4] Our only consideration, then, is whether or not, from any of the facts and circumstances appearing in the record, a jury might have found, properly, that the Railway Company was guilty of negligence. The negligence with which the appellant seeks to charge this defendant is its failure to sound a warning at a time which would have allowed the plaintiff to cross the track to a place of safety on the north side thereof. An ordinance of the city and county of San Francisco was pleaded, providing: "The motorman, gripman or other person in charge of a car in *432 motion must always, by ringing the bell or striking the gong on such car, give timely warning of the approach of such car to pedestrians, drivers of vehicles and others who may happen to be on or about to cross the track in front of such car." (Sec. 19 of Ordinance 581 [N. S.], approved Oct. 23, 1908.) What is "timely" warning would be a question of fact under all the circumstances of the case and would present a question for a jury. In view of the fact that a jury might have believed from testimony appearing in the record that no warning of any kind was sounded and that plaintiff only became aware of the proximity of the street-car when it was "almost on top of him" or within three or four feet from him, when he had no time to cross to a place of safety, we think the jury might have concluded, reasonably, that the failure of the defendant Railway Company to sound a timely warning as required by ordinance, jointly with the negligence of the Water Company in blocking the space on the north side of the track, proximately caused the injury to the plaintiff.
In the case of Fujise v. Los Angeles Ry. Co.,
[5] That one driving a vehicle over, or in proximity to a street railroad track has a right to expect and rely upon some warning to be given him by the motorman of a car approaching him from behind and that this right should be taken into consideration by a jury as an element in determining the question of contributory negligence on the part of a plaintiff is established in this state. (O'Connor v. United Railroads,
We think the question of whether or not the negligence of the defendants proximately caused the injury to the plaintiff was one for a jury, which might have found, properly, upon the testimony that the defendants were guilty of concurring negligence, proximately causing the accident and injury to the plaintiff. [6] "Where direct personal injury is occasioned by the separate but concurrent *433
negligence of two parties at one and the same time, an action will lie against one and all of them." (Doeg v. Cook,
The judgment is reversed.
Nourse, J., and Sturtevant, J., concurred.
A petition by respondents 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 16, 1924.