Kelley v. City and County of San Francisco

NOURSE, P. J.

Plaintiffs have appealed from an adverse judgment based upon the verdict of a jury in an action for damages for the wrongful death of their minor son.

The minor’s fatal injuries were received when he was struck,

[874]

while riding a bicycle, by a passenger bus owned and operated by the defendant city and county, and driven by the defendant Thompson, admittedly its employee, acting within the scope and in the course of his employment. The appellants’ specifications of error are the failure of the court to instruct the jury: (1) that it is presumed that the decedent exercised reasonable care for his own safety; (2) that evidentiary effect should be given testimony as to the decedent’s habit in stopping before entering the intersection and in traversing the intersection in the pedestrian lane; and (3) that what constitutes ordinary care on the part of a minor is to be judged by that degree of care customarily exercised by children of like age, mental capacity, and discretion; and that the court erroneously instructed the jury on “inevitable accident. ’ ’

The accident occurred at about 6:40 p. m. on April 12, 1941, at the intersection of 25th Street and Van Ness Avenue South, in the city and county of San Francisco. Van Ness Avenue South runs in a general northerly and southerly direction. There are two sets of street car tracks thereon; that is, four rails in all. It is an arterial boulevard and there are “stop” signs at the northeast and southwest corners at its intersection with 25th Street. 25th Street runs in a general easterly and westerly direction. Shortly before the accident, which occurred during the daylight hours and at a time when the pavements were dry, defendant Thompson was driving the bus north on Van Ness Avenue South. He was going to the municipal garage and was carrying no passengers. The bus was straddling the most easterly of the street car rails and proceeding at about 15 miles per hour. The decedent was a thirteen year old boy, about 5 feet 7 inches in height and weighing about 160 pounds. He was a student in junior high school and had been a junior traffic officer for three or four years. As such he was familiar with traffic regulations. He was normal, healthy and intelligent. At the time of the accident he was riding his bicycle west on 25th Street. The impact occurred in the northwest quadrant of the intersection. The bicycle was struck by the front of the bus slightly to the right of its center which then seems to have been at about the most easterly street car rail. The distance from the south to the north curb line of 25th Street is 48 feet. The distance from the stop sign at the northeast corner to the point of impact is about 33 feet.