276 P. 591 | Cal. Ct. App. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *191 Appellant sustained certain personal injuries while riding in an automobile driven by one Harold Wagner on July 31, 1926, when the automobile collided with a street-car owned and operated by respondent. The collision occurred about 1:30 o'clock in the morning on East Fourteenth Street near Ninety-sixth Avenue in the city of Oakland. The street-car involved in the collision was at the time of the accident standing on the south track of respondent's car line in the vicinity of one of its barns. It had been moved out of the car barn and on to the street approximately 45 minutes prior to the accident, but had been at the place where the accident occurred only about 15 minutes. The street-car had been moved out so that respondent could properly handle and repair cars at the barn. It was necessary to run cars back and forth between the track on East Fourteenth Street and the car barn. This was done late at night or early in the morning when the traffic on the street was light. At the time of the accident Harold Wagner was operating the automobile in question along East Fourteenth Street in the direction of San Leandro at about twenty-four or twenty-five miles an hour and for some distance had been straddling the south street-car track. The street on both sides of the car tracks was clear and unobstructed, and if the automobile had been driven on that part of the street customarily used for vehicular traffic, the collision would not have occurred. The street-car was standing parallel with the sidewalk and in the same position occupied by it when operating along East Fourteenth Street in the direction of San Leandro. Wagner testified that his headlights were adjusted so that he was unable to see clearly any object more than ten or twelve or ten or fifteen feet ahead of him; that when he first saw the *192 street-car it was ten or twelve feet away; that he attempted to turn out but collided with it. There is a conflict of testimony as to whether or not the street-car was lighted at the time of the accident, several witnesses testifying that it was. Appellant testified that she was dozing in the automobile and did not see the street-car until she was about four feet from it. The case was tried before the court and jury, and resulted in a verdict for the defendant, and from the judgment entered upon such verdict plaintiff has appealed.
The complaint sets out three separate causes of action charging negligence. The first cause of action alleges that the street-car at the time of the collision was unlighted and unguarded and by reason of the failure of defendant corporation to properly light or otherwise guard the street-car it was not discernible to persons driving vehicles, and that by reason of its indiscernibility the automobile was caused to collide with it. The second cause of action charges negligence, specifying that negligence to be that defendant had been accustomed to leave unused cars owned and operated by it standing on the tracks on East Fourteenth Street for several hours each night and particularly on the night that the accident took place, and that the street-car with which the automobile collided had been standing upon the street in accordance with such custom for a number of hours, and that it was thereby an obstruction and an impediment to traffic and constituted a menace to the safety of persons operating automobiles on East Fourteenth Street and was a nuisance. The third cause of action charges negligence in that the street-car was permitted to stand on the street for an unreasonable length of time and was not properly lighted or guarded and that this was a proximate cause of the collision. The jury was fully and correctly charged with respect to the first and third causes of action and no contention is made by appellant that the evidence is insufficient to support the verdict in favor of defendant. It is merely with respect to the second cause of action that complaint is made and with which we are concerned.
[1] In support of her second cause of action appellant offered to prove certain facts to which objection was sustained and which ruling is assigned as error. The offer is as follows: "We offer at this time, if the court please, to show by this witness (Futardo) that the defendant, Key *193 System Transit Company, for the last three or four years habitually stored their cars on the street for two or three hours by leaving two, three or four cars standing on the street approximately in that position and that this car was one of the cars left standing on the street as part of that procedure." An examination of the testimony of the witness Futardo — an employee of Key System Transit Company — which is uncontradicted, discloses that the witness described in detail the practice of the company in moving its cars back and forth between the car barn and East Fourteenth Street, and, therefore, the record contains practically all of the testimony appellant proposed to offer. In fact, appellant states in her brief that her second cause of action is entirely sustained by the evidence. This being true, appellant was not prejudiced by the court sustaining the objection to her proof of the facts stated in her offer, if such facts were material.
[2] We think it immaterial under the facts disclosed whether respondent on previous occasions or habitually stored its cars on the street, for to entitle one to recover for the negligence of another that negligence must have been the proximate cause of or must have proximately contributed to the injury. This is so even though negligence arises because of the violation of a law or an ordinance (Arrelano v. Jorgensen,
[4] Appellant urges that the court erred in refusing certain instructions to the jury proposed by her on the theory embraced in her second cause of action, which is stated in her brief to be in short this: "That by keeping the street car in the position which it occupied, the defendants were maintaining a public nuisance; that such maintenance of a public nuisance constituted negligence per se and that if this maintenance of a nuisance were established and the plaintiff was free from contributory negligence, she was entitled to a verdict as a matter of law." Appellant contends that instructions proposed covering this theory were refused, and that no instructions were given involving the element of nuisance. It is true the court did refuse several instructions requested by appellant on this question, appellant's particular objection being that the court refused to instruct that permitting cars to stand or be stored on the street constituted a nuisance and was negligence as a matter of law and no further proof on plaintiff's part was required. The court, however, gave the following instructions, which correctly state the law applicable to the facts and which sufficiently enlightened the jury on the question of nuisance as here involved: "I further instruct you that anything which unlawfully obstructs the free passage or use in the customary manner of any street or highway, is a public nuisance. If you believe from the evidence that the defendant Key System Transit Company, unlawfully obstructed the public highway by permitting its street-cars to remain upon the same for an unreasonable *195 length of time, then I instruct you that it is no excuse or defense to them that they were permitted to do so by the municipal authorities or that no objection was made to such practice by the police or other municipal authorities as such authorities have no right to license or permit the maintenance of a nuisance. If you believe from the evidence, that the defendant, Key System Transit Company, permitted the street-car involved in this action to stand upon the street and that the said street-car was insufficiently or improperly guarded or lighted or that it was not sufficiently lighted so as to render the same clearly discernible to persons operating automobiles along that street and if you believe from the evidence that it was negligence for them to permit or cause the said street-car to so remain on the street or that it was negligent for them to fail to properly or sufficiently light or guard the said street-car and that by reason of such negligence, plaintiff sustained injury and was herself free from contributory negligence, then your verdict should be in favor of the plaintiff and against the defendant, Key System Transit Company."
[5] We are not in accord with appellant's contention that a street-car standing on its tracks, if so left for not an unreasonable time and being properly lighted or guarded, constitutes negligence per se; nor that the street-car in question, which was left standing on the tracks where the accident occurred for but a few minutes and the street on both sides of the car tracks used for vehicular traffic being clear, constitutes an obstruction or renders the street dangerous and unfit for use by the traveling public.
At the time of the accident and for a long time prior thereto the respondent company maintained its tracks and equipment and operated its cars on East Fourteenth Street by authority of franchises from the county of Alameda and the city of Oakland. It was not only expressly authorized to use the streets, but was required to do so under its franchises. These facts place respondent in a different position from a private individual using the streets. Whether respondent should have been permitted to leave its cars standing on its tracks in the street when not in use was a matter for determination by the authorities. As was said in George v. Los Angeles R. Co.,
Appellant has cited a number of cases where the acts of individuals have been held to constitute nuisances per se, but in these cases the obstructions were unlawful, the California cases cited being Colgrove v. Smith,
Tyler, P.J., and Cashin, J., concurred. *198