Strafiotis v. Daniels

PARKER, J.,

pro

tem.

This is an action for personal injuries alleged to have been suffered by plaintiff by reason of being struck and knocked down by an automobile driven by defendant. The case was tried by the court sitting with a jury, and a verdict returned in favor of plaintiff, pursuant to which judgment was entered, and thereafter a new trial denied. From the said judgment defendant prosecutes this appeal, bringing here likewise for review the trial court’s order denying her motion for a new trial.

The appeal is based upon the following assignments of error:

1. The verdict is contrary to the evidence and contrary to law in this: (a) The proof discloses no negligence on the part of defendant; (b) The plaintiff himself was guilty of contributory negligence as a matter of law.

2 and 3. The court erred in refusing to give certain instructions requested by appellant.

4. The court erred in giving to the jury a certain instruction.

On the question of the evidence it becomes necessary to detail to some extent the facts of the case. In this statement we are necessarily taking the case as the record discloses the same and are assuming as true the facts which support the verdict upon the well-recognized principle that

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appellate courts will not disturb the verdict of a jury where there is a substantial conflict of evidence on material points and when there is substantial evidence to support the verdict.

The accident happened between 11 and 12 P. M. near the corner of Valencia Street and Twentieth Street in the city of San Francisco. The locality named is a business district. Valencia Street runs in a northerly and southerly direction and Twentieth Street runs in an easterly and westerly direction. On Valencia Street are two sets of streetcar tracks, one being for the north-bound cars and the other for cars south bound. At the southeast corner of the intersection or thereabouts, as will more fully appear, there had been designated by the police department of San Francisco a safety zone for those desiring to board street-cars going northerly. The easterly boundary of the safety zone is marked by a white line twelve inches wide extending northerly and southerly about six feet east from the east rail of the north-bound car tracks and parallel therewith. The zone begins at the property line of Twentieth Street and extends southerly the length of a street-ear and about three feet beyond. This safety zone is plainly marked and was seen by the defendant. On the night referred to plaintiff, accompanied by another man, left the sidewalk and went over and stood in the safety zone, intending to board a north-bound ear. He had been standing some two or three minutes in the safety zone and no street-ear was yet in sight. Then he heard the sound of automobiles coming from the south, and he turned his head around to observe them. Suddenly, approaching apparently from nowhere, a jitney bus Ford car at a speed of between twenty-eight and thirty miles per hour sped out of the traffic and struck plaintiff, knocking him down and inflicting the injuries complained of. At the time he was struck he was still standing in the safety zone. The night was clear and dry, there being no rain. The atmospheric conditions can be best understood from the testimony of the defendant that she could see and did see plaintiff standing in the safety zone while she was still a block away. The testimony further shows that defendant gave no warning of her approach.