Henslee v. Fox

STURTEYANT, J.

This is an appeal by the defendants from a judgment based on the verdict of a jury which awarded the plaintiff damages for injuries suffered in an automobile collision.

The accident occurred in Berry Street between Third and Fourth Streets in San Francisco. That portion of Berry Street is private property owned by the Southern Pacific Company and maintained by it to facilitate the loading and unloading of freight at Grocers Terminal Building. Whether Berry Street is a public thoroughfare was, on the trial, treated as a question of fact. Evidence

pro

and

con

was introduced by the parties and the issue was submitted under appropriate instructions for determination by the jury.

[204]

The street runs east and west. It is 57 feet wide from curb to curb. The diagram used in the trial shows 457 feet of the street leading from Third Street west. The Grocers Terminal Building extends along the entire southern line of such portion and a railroad track extends along the entire northern line. No sidewalks are shown on either the north or the south line. On the day of the accident Carl Forrest, a truck driver, had driven a truck up to a box ear on the north side of Berry Street at a point in about the middle of the block. The plaintiff, driving a motorcycle with a side car attached, entered Berry Street from Third Street, drove past the truck so parked by Forrest to the premises occupied by Sussman & Wormser in the western end of the Grocers Terminal Building. made a delivery, and then the plaintiff turned his motorcycle around and started to go back into Third Street. At about that same time Forrest commenced to “straighten” up his truck, that is he commenced to so place it that the rear end would be abutting the door of the box car. As to the movements of each party the evidence is conflicting. There were only two eye witnesses, the plaintiff and Forrest. The plaintiff testified that when he started to return to Third Street a truck was parked on the south line of the street and standing almost at right angles thereto. As we scale the diagram contained in defendants’ brief said truck stood on the opposite side of the street from the truck parked by Forrest and about 75 feet west. The southerly truck the witness estimated to be about 8 feet wide, 25 feet long, and to be standing 10 or 12 feet from the curb. Continuing he testified that he proceeded to drive around the north or front end of the southerly truck turning slightly to his right. When at a point about 40 or 50 feet to the west he saw Forrest’s truck. It was standing still. At that time it stood at an angle to the box car. He showed the jury by placing a card on the diagram but the record does not show the illustration to us. When plaintiff was 3 or 4 feet from Forrest’s truck he saw it start forward and turn toward plaintiff. Before starting up he did not observe Forrest give any signal. The truck moved forward 3 or 4 feet and the impact occurred. He claimed the bumper of the truck ran over and bent down the foot pedal on his car. The witness testified that another truck was parked with its end gate abutting the Grocers Terminal Building opposite Forrest’s truck and slightly to the