Siebel v. Shapiro

WARD, J.

This is an appeal by defendants, the owner of a used ear sales lot and his employee, from a judgment in the sum of $6,500 for injuries received on the premises by plaintiff, a prospective purchaser.

The sales lot is located on the southeast corner of Eddy Street and Van Ness Avenue in San Francisco. It slopes from north to south and from west to east, the slope on the east end of the lot being rather steep from north to south. On the day of the accident plaintiff and his son, who were shopping for a used car, entered the sales lot of appellant Shapiro with the intention of looking over the cars there on display. All available space was occupied by sixty-five or seventy cars and there were a number of people on the lot, including several salesmen, mechanics and a-used car appraiser and buyer of Shapiro. The plaintiff, accompanied by his son, decided to start their inspection at the back (east) part of the lot. They entered the premises from the Van Ness Avenue side, walked across the lot and to the northeast corner thereof. They, then walked south, down a row of cars along the east side of the lot. At the southeast corner of the lot is a tool shed, and directly to the north three or four feet, parked parallel thereto and facing the west was a Dodge truck. They walked around the rear of the truck, then to the west along the side of the car and between the truck and the tool shed. Just as plaintiff was passing the left front wheel of the truck another car crashed down the incline into its right front wheel. The col

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lision pushed the front of the truck south several feet, and plaintiff was knocked to the ground and his right leg crushed by the left front wheel.

The cause of the collision is given as follows: Another prospective purchaser, a man sixty-eight years of age, had asked appellant Lewis, ■ employee of Shapiro, whether there were any 1937 Chevrolet coupes on the lot. Lewis, busy with a customer, indicated one, and there is evidence that he told the man, Gjamara, to go over and try it; that he would be with him in a minute. Lewis admitted to a police officer that in substance he had given such a direction, but that he had no idea Gjamara “was going to drive the ear.” The Chevrolet was parked on the east side of the lot, on the grade, facing south and headed downhill toward the right side of the truck. It had been so parked by appellant Lewis a short time before. The emergency or parking brake had not been set, nor had the wheels of the car been blocked notwithstanding its position. The car had also been left in second gear, the keys in the ignition switch as was the custom at the lot. Gjamara testified that, after looking the car over he got in, felt the gear shift, found it to be loose and assumed it to be in neutral. He did not touch the emergency or parking brake, but assumed it was set. He turned on the ignition and stepped on the starter. Immediately the ear leaped forward, ran down the grade and crashed into the truck. Gjamara, partially deaf, and unable to speak the English language very well, testified that the only car he had ever operated was a 1926 Chevrolet which he purchased in 1930 and drove until 1939.