283 P. 295 | Cal. Ct. App. | 1929
THE COURT.
The plaintiff in the above action was the father of Paulino Patania, a girl aged eleven years, who was struck and killed by an automobile owned by defendant Yellow-Checker Cab Co., a corporation, and operated by P.M. James, its servant. A jury returned a verdict against the defendants, and from the judgment entered thereon both have appealed. As grounds therefor it is contended that both the plaintiff and his daughter were guilty of contributory negligence as a matter of law.
At about 11 o'clock A.M. on May 20, 1926, the plaintiff and his daughter alighted from the rear exit of a street-car which was proceeding north along the east side of Powell Street in San Francisco, and which had stopped near the southeast corner of Powell and Greenwich Streets to discharge passengers. The street-car line is double tracked and the plaintiff's home, which was his destination, was on the west side of Powell Street between 80 and 100 feet south of the southwest corner of the above streets. The evidence shows that the point where they alighted was approximately the length of the car south of the south property line of Greenwich Street; that when the car proceeded both plaintiff and his daughter started from that point to cross to the west curb of Powell Street, which was distant about 30 feet. The child, who was walking rapidly, preceded the plaintiff by five or six feet. Her course was not directly toward the curb, but diverged somewhat to the south toward the residence of the plaintiff. It further appears that the automobile reached the north line of Greenwich Street at about the time the street-car started, and that after the south line of the street was reached the brakes were applied. According to one witness the automobile was then running at a speed of about 35 miles per hour, and skidded a distance of 47 feet, the end of the skid mark being 75 feet south of the south property line of Greenwich Street. When stopped the machine was partially upon the westerly car track. The plaintiff was returning from a hospital *603 to which he had been accompanied by his daughter. He was weak and partially paralyzed, and for some months previous had been confined to his bed. According to the plaintiff the automobile was nearly in front of him when he passed the rear of the street-car and as soon as he observed it shouted a warning to the driver.
[1] It has been held that an adult familiar with travel conditions, who alights from a street-car in the daytime and for the purpose of crossing the street passes to the rear of the car, and before attempting to cross neglects to look for street-cars approaching from the opposite direction, is guilty of contributory negligence as a matter of law. (Klusman v.Pacific Electric Ry. Co.,
[5] The trial court, however, is not bound in such cases to submit the question to the jury when no other inference than that of negligence on the part of the child can be drawn from the facts (Studer v. Southern Pac. Co.,
[8] Where a parent sues to recover damages for a child's wrongful death, recovery may not be had if the negligence of the parent proximately contributed thereto (Zarzana v. Neve DrugCo.,
After a review of the evidence we are satisfied that the jury was justified in concluding that the proximate cause of the damage was the negligent operation of the automobile, and that neither the plaintiff nor his daughter was guilty of contributory negligence.
The judgment is affirmed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on January 16, 1930, and a petition 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 February 13, 1930.
*606All the Justices present concurred.