Lee v. Stephens

[651]

STURTEVANT, J.

On the morning of September 11, 1933, at the intersection of Fourth and Townsend Streets in San Francisco, the motorcycle driven by the plaintiff collided with a Ford coach driven by the defendant William A. Stephens. Lee suffered severe injuries and commenced this action to recover damages. The action was tried before a court sitting with a jury. The jury returned a verdict in favor of the defendants. Thereafter the plaintiff made a motion for a new trial. The motion was granted and from the order granting a new trial the defendants have appealed.

Just prior to the accident the plaintiff was driving his motorcycle with a side car attached on the south side of Townsend Street easterly between Fourth and Fifth Streets. Stephens was driving the Ford car on the westerly side of Fourth Street southerly toward Townsend Street. The plaintiff introduced evidence to the effect that before reaching Fourth Street he was traveling less than twenty miles an hour and that before he entered Fourth Street he reduced his speed. He further testified that before entering Fourth Street he looked to his left and saw the Ford ear proceeding in a southerly direction. He was not asked and did not state the speed at which the Ford was traveling. However, he indicated on the diagram which is a part of the record that the Ford was at the time in question forty or fifty feet north of the northerly line of Townsend Street. The plaintiff proceeded into Fourth Street and when he was about six feet from the center line thereof he saw a passenger car going north in the easterly portion of Fourth Street. At that time he' applied his brakes and slowed down to ten miles per hour. At that moment he looked again and the Ford car was going forty or forty-five miles an hour and as the witness testified, “was right on top of him”. From the time he saw the Ford ear the first time he did not look at it again until the time of the collision. The defendant Stephens testified that as he proceeded south on Fourth Street he had been going twenty miles an hour. As he approached Townsend Street he slowed down for the purpose of observing traffic. After he did so he noted a truck to his right traveling along the south side of Townsend Street and approximately 125 feet west of the intersection. The plaintiff’s motorcycle was not in sight. The witness drove forward at about fifteen miles an hour.