56 Cal. App. 2d 480 | Cal. Ct. App. | 1943
Defendants appeal from a judgment for plaintiff for personal injuries suffered by him as the result of a collision between an automobile in which he was riding, and a streetcar owned by the corporate defendant and operated by George Sorg, and also from an order denying their motion for judgment notwithstanding the verdict.
The accident occurred at the intersection of McAllister and Hyde Streets in downtown San Francisco on a Sunday afternoon at about 1:15 p.m. The day was clear and the streets dry. There were no other vehicles in the vicinity. McAllister Street, on which the defendant corporation maintains a double track, runs in an easterly and westerly direction, the southerly track carrying eastbound traffic, the northerly, westbound. Hyde Street runs north and south. Both streets are 45 feet wide between curbs and have sidewalks 12 feet wide. There is an office building on the northwest corner of the intersection, and both streets as they approach such intersection have a slight down grade.
The complaint charges negligence in general terms. The answer was a denial, and also set up as a separate defense contributory negligence. The jury returned a verdict for $3,500 in favor of plaintiff. The negligence of the defendants is not disputed on this appeal.
It is the contention of appellants that in driving through the intersection and upon the eastbound track plaintiff’s wife was contributorily negligent, and that as a matter of law plaintiff’s right of recovery is lost under community property principles (3 Cal.Jur. 10-Yr. Supp., p. 542, § 52), also that in the giving of certain instructions to the jury, the trial court was guilty of prejudicial error.
The testimony of the various witnesses relative to the respective positions of the streetcar and the automobile just
In view of the verdict, we must conclude that the jury accepted the evidence most favorable to plaintiff. There is evidence that at the time the automobile entered the intersection the streetcar was approximately 166 feet away; that the driver of the former had ample time to cross had the speed of the streetcar been properly reduced, and that the streetcar had been “slowed down” just prior to the accident, but its speed was increased as it entered the intersection. The proximate cause of the accident, including the question of the diligence of plaintiff’s wife in observing the streetcar,
Appellants object to an instruction in that it mentions only the distance of the streetcar from the intersection at the time plaintiff’s wife proceeded to cross, and makes no mention of its speed, but the instruction contained the phrase which obviously referred to both distance and speed—“That an ordinarily prudent person in the exercise of reasonable care under the same or similar circumstances would believe that he or she could make such crossing in safety.” The action of plaintiff’s wife in crossing would be prudent or imprudent regardless of the exact point at which she observed the streetcar, depending upon whether as the result of her diligence in observing approaching traffic at the intersection, an ordinarily prudent person under similar circumstances, including all the surrounding facts of visibility, speed, etc., would have been justified in believing that a crossing could be made in safety. Distance and speed are “circumstances.” The question of prudence or imprudence in observing the conditions before or upon entering the intersection may depend upon the ‘ ‘ circumstances” of observation. There was evidence of “speed” and “distance,” each separately and collectively to be considered by the jury. We are not convinced that the instruction stressed the question of distance and ignored that of speed in view of the language used therein and in other instructions on the subject of “speed,” the duty of one traversing an intersection of highways, and the distance necessary to constitute a clear and unobstructed view of approaching traffic.
Appellants also contend that there is error in the following instruction: “If you so find from the evidence that at the time and place of the accident in question the operator of the automobile was driving her automobile in a lawful and careful manner, then she was entitled, in the absence of anything which reasonably should give her notice to the contrary, to assume, and to act on the assumption, if you so find, that the operator of the street car in question would keep his street ear under control and would use ordinary care to avoid colliding with said automobile. ’ ’ In Edlund v. Los Angeles Ry. Co., 14 Cal.App.2d 673, 675 [58 P.2d 928], the court said:
At defendants’ request the court instructed the jury: ‘ ‘A street car has from necessity a right of way over that portion of the street upon which alone it can travel, paramount to that of persons and ordinary vehicles, though this superior right is not exclusive, and does not prevent others from driving or passing across or along its tracks at any place or time, when by so doing, it will not materially interfere with the progress of the cars. It is the duty of the citizen, whether on foot or in a vehicle, to give unobstructed passage to the street cars, which cannot turn out or leave the track.” They contend that an instruction given at the request of plaintiff, in substance, that the defendants “had no rights greater or superior to those of the operator of the automobile,” was conflicting with the one above quoted as to the paramount right of way of the streetcar over that part of the street on which it alone can travel. The two instructions are inconsistent only when certain language of the first is considered with a few words used in the second. The statement in the above quoted instruction—that the streetcar has a paramount right of way over an automobile—is not entirely correct as applied to intersections. The following language from Cowan v. Market Street Ry. Co., supra, p. 649, is applicable here: “The elementary principle that a street car traveling on fixed rails must have the right of way over other movable traffic may be conceded, but it has no application to the facts of this case.” The rule applicable to the facts of this ease is set forth in Wright v. Los Angeles Ry. Corp., 14 Cal.2d 168, 173 [93 P.2d 135] : “ ... it is generally conceded that, on approaching an intersecting street, the duties of a streetcar motorman and those of the driver of an automobile which is about to cross the streetcar tracks at such intersection, are reciprocal and that
The court instructed that a streetcar approaching an intersection does not have a right of way superior to that of an automobile which has entered from an intersecting street. It would perhaps have been better if, instead of negativing the superior rights of one party, the jury had been instructed that under ordinary circumstances the rights and duties of parties entering an intersection at the same time (60 C.J., p, 400, §209), save in the particular that a streetcar confined to tracks may not swerve to the right or left (Runnels v. United Railroads, 175 Cal. 528 [166 P. 18]), are equal; that the operator of a streetcar and the driver of an automobile are required to respect each other’s rights (Wright v. Los Angeles Ry. Corp., supra). However, from an analysis of the instruction we find the court did not state that the automobile had superior rights. Appellants contend that plaintiff’s evidence shows that this is a case of vehicles entering the intersection at the same time. The evidence indicates that the automobile entered first. We cannot concede that appellants were injured by this particular instruction.
Based upon certain language used in Whitfield v. Debrincat, (Cal.App.) 120 P.2d 40, an objection was made in the appellants’ opening brief to an instruction relative to contributory negligence. A rehearing was granted in the cited case (50 Cal.App.2d 389 [123 P.2d 591]), and the hold
We do not find that any of the instructions objected to, or the refusal to give certain instructions, warrant a reversal of the judgment. The conclusion at which we might arrive from the evidence is immaterial. There is substantial testimony to support the conclusion reached by the jury upon evidence as to which reasonable minds might differ.
The judgment is affirmed.
Peters, P. J., and Knight, J., concurred.
A petition for a rehearing was denied February 3, 1943, and appellants’ petition for a hearing by the Supreme Court was denied March 1, 1943.