Scott v. City & County of San Francisco

California Court of Appeal May 19, 1949 No. Civ. 13897Published

Before: Dooling

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Holding. The court held that the trial court erred in granting a nonsuit because the evidence presented a question of fact for the jury regarding both the defendant's negligence and the plaintiff's contributory negligence.

Issues

Whether the evidence was sufficient to support a finding of negligence by the streetcar operator.
Whether the plaintiff was contributorily negligent as a matter of law while working in a public street.

Disposition. reversed

Quotations verified verbatim against the opinion

“That the jury could find that the streetcar was negligently operated is clear.”

“Plaintiff’s contributory negligence in our judgment was also not established as a matter of law.”

“One whose duties require him to work in a public street is not held to the same quantum of care as a pedestrian.”

DOOLING, J.

Plaintiff appeals from a judgment of non-suit. On October 7, 1946 between 4 and 4:30 p. m. plaintiff was struck by a northbound streetcar of the San Francisco Municipal Railway operated over San Bruno avenue. Plaintiff was employed by a roofing contractor as a member of a crew engaged in installing a roof on a building under construction. His particular duty was to tend the tar kettle in which tar was heated for use in the construction of the roof. There was a pile of debris in front of the building and workmen of defendant had dug a trench in the street leading to the building for the installation of a water or sewer pipe. By reason of the trench and the debris the tar kettle had been placed within 3 feet of the overhang of streetcars operated on the northbound track. Just before the casualty to plaintiff occurred the tar had caught on fire and he had gone between the northbound track and the ket% to the south end of the kettle to trip the lid and thus extinguish the fire. From that point, taking the testimony most favorable to plaintiff, the following occurred:

' Plaintiff looked south along the car track and saw nothing approaching from that direction. He then turned and walked between the kettle and the northbound track with his back to approaching traffic from the south. He heard no streetcar bell or other warning and he was struck from the rear by the overhang of the front of the northbound municipal car. Two workmen on the roof of the building under construction testified for plaintiff. They saw the plaintiff walking between the kettle and the track with his back to the oncoming streetcar when, according to one witness, the streetcar was 150 feet from plaintiff. The car was traveling from 20 to 25 miles per hour and did not slacken its speed until after striking the plaintiff. These witnesses heard no bell or other warning.

That the jury could find that the streetcar was negligently operated is clear. Testimony that no bell or warning

[889]

signal was heard by witnesses in a position to hear is sufficient to support a finding that none was sounded.

(Ostertag

Bethlehem etc. Corp.,

Scott v. City & County of San Francisco

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DOOLING, J.

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