141 P. 809 | Cal. | 1914
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *45 This is an action for personal injuries in which plaintiff had a verdict and judgment. Defendant appeals from the judgment and an order denying its motion for a new trial.
The first claim of appellant for a reversal is based on the refusal of the trial court to grant its motion for a nonsuit.
Plaintiff, on the afternoon of February 13, 1909, was driving a hotel bus with a gentle team of horses along the southerly line of Mission Street between Fifth and Sixth streets, in the city of San Francisco. He was traveling along slowly, the wheels of the bus being a foot or fourteen inches from the southerly railroad track of the defendant. While he was so proceeding a car coming rapidly along the southerly track of the defendant in the rear of the bus collided with its rear wheel, lifted the end of the bus and turned it in such a way as to throw plaintiff from it into the street, from which fall he sustained grievous injuries. It was admitted that an ordinance of the city of San Francisco limited the speed of cars *46 on Mission Street to ten miles an hour. The evidence shows that the car which struck the bus was proceeding at from twelve to fifteen miles an hour and its speed had not been slackened when the accident occurred, and that no warning or signal of its approach was given by the motorman by the ringing of a bell or otherwise. It further appeared that the plaintiff had made no effort while driving along to turn into the track but was outside of it at the distance mentioned and that had he been warned of the approach of the car it would have taken but a moment to have moved further into the street from the track; that the impact of the car with the bus was of such force that it carried the bus forward against a heavy mail truck fifteen or twenty feet in front of it, and likewise forced the truck a considerable distance forward before the car was stopped. The plaintiff had turned into Mission Street at Eighth Street, intending to turn off Mission Street at Fourth Street; that when about twenty-five feet east of Sixth Street he looked back to see if a car was approaching and saw none; that he did not look back again; that there was nothing to prevent him from seeing back as far as Seventh or Eighth Street, and the distance traveled by him after he looked back and up to the time the collision occurred was about five hundred feet.
Appellant based its motion for a nonsuit upon two grounds: 1. That the plaintiff did not make a sufficient case showing negligence on the part of defendant; and 2. That the evidence affirmatively and indisputably shows that the plaintiff was guilty of contributory negligence.
While appellant based its motion in the trial court on both grounds and urges both now, its particular insistence here is that the trial court should have granted the motion on the second ground — contributory negligence. In that regard it is claimed the evidence shows that plaintiff, after placing himself in dangerous proximity to the track, failed to take any precaution by looking back to see whether a car was approaching, but relied entirely on some warning of its approach to be given by the motorman in order to get his bus out of danger, and, in general, failed to use such ordinary care as the situation he was in demanded of him; that this constituted in law contributory negligence precluding a recovery, and that the trial court should have so declared and granted the nonsuit on that ground. *47
If this claim of the appellant as to contributory negligence is not well taken, or if, in other words, under all the circumstances of the case the question whether the plaintiff did or did not exercise ordinary care was properly a matter to be determined by the jury, then there is nothing in the first ground of the motion for a nonsuit — namely, that the evidence does not show negligence on the part of the defendant. The evidence shows that plaintiff was driving along a public street where, as we shall point out in discussing the matter of contributory negligence, he had a right to travel, even though it brought him close to the track of the defendant; that the motorman had a straight, clear track ahead of him with nothing to obstruct his view of the position of plaintiff or to prevent him perceiving the danger of a collision; that he was running his car at a prohibited rate of speed and without lessening such speed or having his car under control and without any warning of its approach ran down from behind upon the vehicle of the plaintiff. Under these facts the defendant was clearly guilty of negligence. It must be apparent that in operating a street-car over a public street a motorman cannot under ordinary circumstances run down a vehicle proceeding in the same direction without having been negligent in the operation of his car. The mere fact that he does so furnishes cogent evidence of negligence which is rarely capable of explanation. (Richmond Traction Co. v. Clarke,
Now as to contributory negligence. This is based on the claim that plaintiff in proceeding along the street placed himself in such proximity to the track of defendant that danger of collision with a car operating thereon might occur; that he should have taken the precaution which the situation demanded of him of looking out for the approaching car which collided with his bus, the approach of which was discernible for a long time after plaintiff commenced driving along the track and which plaintiff might have observed if he had looked back; that he took no precaution in this respect but depended *48 solely on the care of the motorman to give him notice of any approaching car; that this was want of ordinary care on the part of plaintiff constituting contributory negligence.
It is undoubtedly true that plaintiff was required to exercise reasonable care in driving along the public street in the vicinity of the track of the defendant; such care and diligence as a reasonably prudent man would have exercised under the circumstances. As a general rule, whether a person has exercised ordinary care or not is to be left to the jury to be determined by them from all the circumstances surrounding him at the time. But it was not negligence per se for the plaintiff to drive along the street as he did in proximity to the track of the defendant. This of itself did not constitute negligence at all. The streets of a municipality are for the use of the traveling public and the right of a street-car company is only to use it in common with the public. The fact that the company has been granted a right to lay tracks and operate cars along the streets gives it no exclusive right to travel even over that portion of a street covered by its tracks. Other vehicles have a right to travel over the entire street, including the space between the tracks. Nor is this right restricted to the times when other portions of the street may be crowded or in bad condition. Nor is a traveler in doing so in any sense of the term a trespasser. As a member of the public he is entitled as matter of right to use the entire street subject only to the limitation that, as the use of the street by the car company is confined to its tracks, a traveler may not unnecessarily interfere with or obstruct a car in its movement thereon. The car company is entitled in the interest of the public service to a free and unobstructed passage at all times of its cars over its tracks when necessary, and when such movement is being made free vehicles must yield a clear right of way to it for that purpose. (Shea v. Potrero and Bay View R.R.Co.,
Nor did the fact that he did not keep a constant watch behind for an approaching car while driving near the track show want of ordinary care on the part of the plaintiff or constitute negligence per se. The same rule as to "looking" applied to the drivers of vehicles about to cross the track of a steam railroad at highway crossings does not apply to those driving along street-railroad tracks laid upon public highways. The distinction is clearly pointed out in Clark v. Bennett,
In Scott v. San Bernardino Valley etc. Co.,
In Lawyer v. Los Angeles Pacific Co.,
Other authorities declaring the same principle are Hickey v.Brooklyn Heights R.R. Co.,
In the light of these authorities applied to the facts disclosed by the evidence here it was the duty of the trial court, as it did, to leave to the jury for determination not only the question of the negligence of the defendant but the further question of whether plaintiff was or was not guilty of contributory negligence.
It is further claimed by appellant that the court erred in giving an instruction requested by plaintiff wherein, after stating that an ordinance of the city of San Francisco prohibited the running of cars on Mission Street at a greater speed than ten miles an hour had been introduced in evidence and might be considered by the jury, concluded it with "I charge you that the violation of the ordinance constitutes negligence per se."
It is insisted that the phrase "negligence per se," particularly the Latin words "per se" therein, should have been defined to the jury; that the use of these Latin words in the instruction without explaining what they meant, was calculated to mislead them. It is further claimed that the instruction as given is an incorrect statement of the law. As to the first point. While the phrase "negligence per se" has in legal science a fixed and well defined meaning with which the legal profession is familiar, it is claimed by the appellant that the average jurors may not be familiar with it and that its meaning should have been explained by the court so that they might comprehend and understand it. This doubtless was the proper course for the court to have pursued but its mere failure to do so should not be held here to constitute error. It is highly probable in this case, as is common in cases of this character, that this phrase was made use of by counsel on both sides in their discussion of the motion for a nonsuit in the presence of the jury and in their argument to the jury on the submission of the cause on its merits and that hence the jury did understand its meaning and the court was aware of this fact when it instructed them. Be that as it may, however, when the instruction was given if counsel for appellant had any doubt whether the jury understood it or that its meaning might be misapprehended they should have either asked the court to explain it or prepared an instruction themselves doing so. They should not be permitted to now urge *53 error on the theory of possible ignorance or possible misapprehension of the jury as to the meaning of the phrase or the words used in it when they could so easily and readily have removed any conjecture about it.
Likewise, there is no merit in the other point made by appellant that the quoted portion of the instruction is an incorrect statement of the law. As an abstract proposition of law the violation of a local ordinance is per se, or as these words mean "of itself" negligence. The point which appellant really makes, however, is that though such violation would amount to negligence in the abstract the court should have accompanied the declaration of the abstract rule with a qualification that such violation could only be considered by the jury if they found that it contributed proximately to the injury of the plaintiff. But as the instruction so far as it went correctly stated the law it is to be said of the claim now made, as is said of the other objection to the instruction, that counsel for appellant should have either asked the court to instruct the jury as to the qualification which the court would have done or have presented an instruction embodying it which the court undoubtedly would have given.
Appellant challenges the correctness of other instructions given by the court and its action in modifying and refusing instructions tendered by it. We have examined the claims made in this respect and do not think any of the objections as to the action of the court are tenable.
The judgment and order appealed from are affirmed.
Henshaw, J., Sloss, J., Angellotti, J., Shaw, J., and Melvin, J., concurred.