Casey v. Delelio

NOURSE, P. J.

Plaintiff sued for damages for personal injuries and had a verdict for $6,000 and $5,000 respectively against Charles and Alfredo Delelio to whom we refer herein as defendants, since the other defendants had a verdict against plaintiff and are not interested in the appeal. The defendants’ appeal raises four separate questions, but we will confine our discussion to the first which relates to the charge of contributory negligence on the part of the plaintiff.

The facts concerning the accident are not in material dispute. At about 5:40 o’clock on the morning of January 13, 1938, the plaintiff walked northerly on the westerly side of Third Street, in the city and county of San Francisco, crossed its intersection with King Street, and then turned to his right in an easterly direction to cross Third Street. At that point King Street was occupied by the Southern Pacific Railroad Company with three sets of railway tracks which were used chiefly for switching purposes. The westerly side of Third from King to Townsend Streets north was occupied by the Southern Pacific depot. It had a wide sidewalk and curbing throughout the block. The easterly side of Third Street from King to Townsend was occupied by stores and other places of business. There was no defined or marked crosswalk at the intersection of Third and King. What might be termed the point of the curb on the east side of Third was a little farther south than that on the west. After crossing the railroad tracks, plaintiff looked to his left and to his right and saw a street ear coming northerly on Third Street and crossing the railroad tracks at that intersection upon the signal of the flagman stationed at that point. He then started easterly and ran across the street railway tracks to a point approximately between three and ten feet easterly from the most easterly rail where he was hit by defendants ’ automobile which was proceeding northerly paralleling the street car.

Negligence is charged to the defendants in the excessive speed at which the automobile was operated with insufficient or defective brakes, and with a failure to sound a horn. Their negligence in this operation of the vehicle will be assumed. In their attack upon the judgment the defendants charge that the plaintiff was guilty of contributory negligence as a matter

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of law in his attempting to cross the street at a point other than the crosswalk and in front of the moving street ear which completely obscured his view of all northbound traffic to the east of the street car.