Brooks v. City & County of San Francisco

LUCAS, J.,

pro tem.

Appellants seek reversal of the judgment rendered in the trial court on a verdict for $15,000 awarded respondent in her representative capacity as damages for the death of her husband, who was injured and died as the result of an automobile collision alleged by respondent to have been caused through appellants’ negligence.

As grounds for reversal appellants urge that the negligence of appellants was not proven, that the decedent was guilty of contributory negligence, and that the court erred in giving an instruction upon the doctrine of last clear chance.

Briefly the facts are these: On Sunday, November 6, 1927, at about 9:30 A. M., Charles C. Brooks was operating a Dodge coupe in a northerly direction on the easterly portion of the Embarcadero between piers 35 and 37 in the City and County of San Francisco. At the same time appellant J. M. Dunne, an employee of appellant City and County of

[256]

San Francisco, was operating a seven-ton bus, 30 feet in length, to the rear of the Dodge coupe in the same direction and on the same side of the Embarcadero. The surfaced portion of the Embarcadero at the points involved in this action was then approximately 110 feet wide, having an asphalt surface or pavement on the easterly 30 feet thereof, the remaining 80 feet of said surface being cobbled pavement. The Dodge coupe driven by the said Brooks was first observed by appellant Dunne at a time when the bus driven by him was several hundred feet southerly from said coupe. Traveling at a speed variously estimated at from 15 to 30 miles an hour, the bus overtook the Brooks car, and when about 25 feet from it appellant Dunne steered sharply to the left and applied his brakes, thereby causing the bus to skid and collide with the rear end of the coupe. As a result the coupe was seen to spin around several times and come to a stop against the extreme easterly curb of the Embarcadero at a point estimated by several witnesses to be from 50 to 180 feet from the point of collision. The estimate of 180 feet, however, is substantiated by disinterested witnesses who actually made measurements on the ground.

The collision occurred in what is admittedly a business district of San Francisco, and at a time when the street was very wet and slippery. As a result of the collision the said Brooks sustained injuries from which he subsequently died.