118 P. 237 | Cal. | 1911
Plaintiff appeals from the judgment and from an order denying his motion for a new trial in his action for damages for personal injuries. Defendant's motion for *55 nonsuit was granted, and we are called upon to determine whether or not the court erred in its action on said motion. The evidence in plaintiff's behalf showed that at the time of the injury he was walking between the tracks of the defendant corporation on Santa Monica Avenue in the county of Los Angeles. The hour was between seven and eight o'clock in the evening. Plaintiff left the car at Vermont Avenue and started westerly along Santa Monica Avenue toward his home. After walking about four blocks he came to a place where there was no sidewalk, and as the street was muddy he took a well beaten path near defendant's south track, which he followed in its course beside the track for a distance of one hundred and fifty feet, and then, still using the path, went across the south track to the space between the two tracks where the beaten footway continued. In his account of the accident plaintiff testified: "There was a street intersecting Santa Monica Avenue from the north and I had just passed, crossed that street on Santa Monica Avenue, about thirty feet, when I saw a light flash on the north track and I heard the car coming and then stepped back to the south track and I expected the car to run on the north track so I stepped to the south. I stopped and looked around facing the north and looked to the east. Just happened to look around and saw the car within ten feet of me and I made a quick dodge, but it came too fast. I could not dodge it. I dodged off towards the north track." The step of the car struck plaintiff and he sustained very severe injuries. At the time of the accident the rain was falling, the mud was deep, and the footpath between the tracks was the only convenient place for pedestrians. The space between the inner rails of the two tracks was about nine feet in width, and in this strip were placed the poles from which the trolley wires were suspended. The car was running very rapidly at the time of the accident and the bell had not been sounded nor had the whistle been blown while the car was traversing more than two blocks to the eastward of the point where plaintiff was struck. Contrary to custom, the car was being operated in a westerly direction on the south or left-hand track. Plaintiff's showing therefore is that he was proceeding along a beaten pathway between defendant's tracks, that defendant's car approached him from the rear without any sound of bell or whistle and moving contrary to *56 custom on the left-hand track; that seeing the flash of the headlight on the track upon which the car proceeding in that direction was commonly operated, he hastened to a place supposed by him to be a safe one and which ordinarily would have placed him out of danger; and that he was then struck by the car which was running very rapidly.
Respondent concedes that plaintiff introduced at the trial sufficient evidence to make out a prima facie case of negligence on the part of the defendant in the operation of the car, but the granting of the motion for nonsuit is defended upon the ground that the evidence conclusively established such negligence on the part of plaintiff as contributed proximately to cause the accident. Appellant insists that the question whether or not he was guilty of contributory negligence was one of fact for the jury, and that under the evidence his conduct was not such that the court could say as matter of law that he was guilty of negligence. Being between the tracks of an electric railroad upon a public street is not negligence per se. The street is for the use of the public, although the car, which can be operated only on the track, has the better right to that part of the thoroughfare, to which pedestrians must yield when necessary. The rights of a company operating street cars are otherwise not superior to those of persons who may be Walking on the street. (See Shea v. Potrero Bay View R.R. Co.,
The plaintiff, who was a witness in his own behalf (after he had testified that no bell or whistle was sounded on the approaching car before it struck him) was asked the following question: "If any bell or whistle had been sounded within two blocks from where you were struck that night, could you have heard it?" The court sustained the objection upon the ground that a conclusion of the witness was called for. This ruling was correct. The answer contained a denial of the allegation in the complaint that no bell was sounded and no whistle was blown as the car approached plaintiff. One of the questions which under the pleadings and proof the jury would have been called upon to determine was this issue of fact. The question propounded to Mr. Lawyer was not within the rule announced in Raymond v. Glover,
The court properly refused to permit Miss Carrie Byers, a witness, to state whether or not when she first observed Mr. Lawyer about two hundred feet ahead of the car he was in a position where the car would strike him. Obviously any declaration on that subject would be a conclusion drawn by her from the facts — a deduction which the jury might make as well as the witness. However, on cross-examination Miss Byers did testify without objection that plaintiff was "where he would be hit."
The court did not err in sustaining the objection to the question propounded to witness Byers: "How long after Mr. Lawyer was struck was it before the brake was applied?" The speed of the car was a matter in issue, and there was some evidence regarding the distance the car moved after striking plaintiff. It therefore would have been proper to inquire at what distance from the point at which Mr. Lawyer was struck the brakes were applied, but we do not see how the length of time elapsing between the impact of the car against the man and the application of the brakes would be material.
No other suggested errors require attention.
The judgment and order are reversed.
Henshaw, J., and Lorigan, J., concurred.