Soukoian v. Cadillac Taxi Co.

LANGDON, P. J.

This is an appeal by the defendant from a judgment for seven thousand five hundred dollars against it in an action to recover for personal injuries alleged to have been caused by the negligence of defendant in operating one of its taxicabs in the city and county of San Francisco.

Two points are made upon the appeal: That the plaintiff is chargeable with contributory negligence as a matter of law, .barring his recovery, and that the record presents a case ,of such irregularity in the proceedings of the court and jury as to compel a reversal of the judgment.

The first point, we think, is without merit. It is true that if appellant’s inferences from the evidence be accepted, the plaintiff’s conduct would appear to be negligent; but there is another view of the evidence which is possible and reasonable and which is consistent with due care upon his part.

The accident occurred at about 10 o’clock in the evening on April 13, 1922, at the intersection of Fillmore and Jackson Streets, in San Francisco, California. The plaintiff was in the act of crossing from the south side of Jackson Street to the north side, at or near its intersection with Fillmore Street. There was no traffic upon the street except a cable-car proceeding in a westerly direction along Jackson Street, and the automobile owned and operated by defendant, by which plaintiff was struck. "When plaintiff started across the street the cable-ear was on the far side of the intersection of the two streets, to the east and right of plaintiff. About the time the cable-car started to cross Fillmore Street the plaintiff started to cross Jackson Street. Plaintiff reached the car tracks while the cable-ear was several feet away from him and crossed them in safety. The defendant’s automobile had been traveling back of the street-car. According to the testimony of the driver, when the street-car started up

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to cross Fillmore Street, he started the automobile up behind the cable-car and followed behind the street-car until he reached the building line of Fillmore Street, when he drove out from behind the car and started to pass the same, striking plaintiff after he emerged from in front of the car and when he was close to the sidewalk. The space between the street-ear tracks and the curb was a little over eleven feet wide. Plaintiff testified that when he was crossing the cable-car tracks he had plenty of room to cross before the oncoming car and that while so doing he looked to his right and could see the right-hand side of the cable-car farther than the rear end of the car and there was no automobile in his field of vision. After he had crossed the tracks and was halfway 'between them and the curb, he saw the automobile almost upon him. He made an effort to reach the sidewalk, but was struck almost instantly after seeing the automobile. Whatever other inferences might be drawn from this state of facts, it seems apparent that one possible and reasonable inference is that the defendant’s agent steered his automobile from behind the street-car at about the moment plaintiff stepped off the track and before plaintiff could reach a place of safety upon the sidewalk, struck bim down before the automobile had traveled far enough to pass the street-ear.