Gibb v. Cleave

NOURSE, P. J.

In a trial before a jury the plaintiff had a verdict for injuries caused when struck by defendants' motor vehicle, and the defendants have raised three points in their appeal from the judgment—that plaintiff was guilty of contributory negligence, that he failed to prove any negligence on defendants’ part, and that the damages were excessive. We limit our discussion to the first point.

The plaintiff attempted to cross the intersection of Broadway and Forty-first Streets in the city of Oakland at about 8:15 P. M. of December 13, 1934. The street was wet from recent rains, the night was dark and the visibility poor because of the glare of street lights upon the wet pavement.

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Broadway at that point is an arterial boulevard appropriately marked with “stop signs” at the intersection with Forty-first. The plaintiff saw the car approaching from his left while he was on the sidewalk. When he reached the curb he took one look and saw the car 150 feet to his left. He wore a dark hat and a dark overcoat; he turned the collar of the coat completely over his face, and walked into the street with his eyes “on the buttons”, and without looking in either direction for approaching ears. The buttons referred to marked a safety zone for northbound street car passengers. ¡Broadway from curb to curb is 70 feet wide. The distance from the outer rail of the street car tracks to the easterly curb is 26 feet, 7 inches. The safety zone is about four

feep

wide. The distance from the outer rail to the first button Af the safety zone is about two feet and the distance from the outer button to the easterly curb is 20 feet, 1 inch. The plaintiff testified that as he left the easterly curb he saw 1jhe car running astride the easterly street car track. He could not judge its speed, but other evidence fixed a speed of 20 or 25 miles. Plaintiff was struck at a point near the most easterly button of the safety zone marking its northerly boundary. The car was stopped within two feet of the point of impact, and plaintiff was taken immediately to the emergency hospital for treatment. The attending physician and two ¡nurses found him to be intoxicated and so testified.

The foregoing statement is without substantial conflict. The defendant, who was operating the ear, and his companion both testified that they were not running on the street car track, and the plaintiff testified that he had drunk but a glass and a half of wine before the accident. Neither is important so far as the issue is concerned. If the car was on the street ear rail, as plaintiff testified, and continued on that course, the two would have met at approximately the same point, and an accident would have been unavoidable unless one of the two came to a stop. The lights of the car would have then appeared in front of plaintiff and inside of the safety zone. But he was struck from the rear and outside of the safety zone. Hence, if his story be true, a single glance to the front or to the left would have shown that the car had left the rails and was trying to pass behind him. His testimony as to the amount of wine he had taken is not evidence of nonintoxication and does not contradict the| positive evidence of three disinterested witnesses who had