Murphy v. St. Claire Brewing Co.

PETERS, P. J.

Defendant appeals from a judgment based upon a jury verdict awarding plaintiff damages for personal injuries in the sum of $3,000 general damages, and $458.50 special damages.

On this appeal the defendant contends that under the evidence the defendant was not negligent, that, as a matter of law, plaintiff was guilty of contributory negligence, and that the trial court erred in giving a certain instruction to which reference will hereafter be made.

A reading of the transcript and briefs demonstrates that, other than the question of the propriety of the challenged instruction, fundamentally the sole issue involved is that of proximate cause—an issue which, except in a very limited number of cases, is a question of fact for the determination of the jury. The jury having impliedly found that defend

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ant’s negligence was the sole and proximate cause of the accident, and that finding being amply supported by the record, this court has no power to disturb the judgment.

Respondent is a motorman employed by the Municipal Railway Company of San Francisco. Early in the afternoon of May 19, 1937, he was off duty, and was riding as a passenger on a “D” streetcar, which operates on Geary Street, on his way to the car barn where he was due to go on duty. He had boarded that car at Geary and Larkin Streets. The “B” and “C” cars also pass that intersection on Geary Street. The “D” car turns northerly on Van Ness Avenue, but the “B” and “0” streetcars cross Van Ness Avenue and continue out Geary to the car barn. Respondent had boarded the “D” car because he had observed that the conductor was a friend of his to whom he wished to deliver a message. He intended to leave the car at Geary and Van Ness, and to then board a “B” or “C” car, one of which was following the “D” car. At Van Ness Avenue the “D” car, if traffic permits, does not stop even when the traffic light is red, but makes the turn and stops on Van Ness Avenue. However, there is evidence that about eight out of ten times the “D” car stops at the corner before making the turn because of automobile traffic which must obey the traffic signals.

As already stated, respondent boarded the streetcar at Geary and Larkin. The next cross-street is Polk, and the next is Van Ness. Between Polk and Van Ness the sidewalk on the north side of the street is twelve feet wide. From the curb to the nearest streetcar track is thirteen feet eleven inches. Running parallel to this rail, and a distance of two feet seven and one-half inches northerly therefrom, there is a line of metal staples or tabs driven into the pavement to mark the overhang of the streetcar. Actually, the overhang of the streetcar is but two feet and one-quarter inch, so that there is a seven and one-quarter inch safety factor. At about the middle of the block between Polk and Van Ness, on the northerly side of Geary, along the curb is a loading zone, the curb there being painted the usual yellow. On the day in question a beer truck of appellant, about twenty or twenty-one feet long, desired to make a delivery to a grocery store adjoining the loading zone. Certain automobiles were par