Mayer v. Anderson

KERRIGAN, J.

This is an action for damages for personal injuries alleged to have been caused by the defendants’ negligence.

The court at the conclusion of the plaintiff’s case denied a motion for nonsuit, but the motion being renewed when the defendants had concluded the introduction of their testimony, it was thereupon granted. The propriety of the court’s action in this regard is the sole question presented for review.

In considering this same question the court, in the case of

Lassen

v.

Southern Pacific Co.,

173 Cal. 71, 74, [159 Pac. 143, 144], stated the rule to be applied as follows: “In deciding a motion for a nonsuit, ‘every favorable inference fairly dedueible . . . from the evidence produced must be considered as facts proved’ in favor of the plaintiff. If there is any substantial evidence tending to prove all the facts in issue constituting the plaintiff’s case, he is entitled to have the case go to the jury for a verdict on the merits. ’ ’

Reverting for a moment to the facts of the case, the evidence showed that the plaintiff, at about 5 o’clock on the afternoon of June 26, 1914, was crossing on the northeiiy side of Market Street, in San Francisco, and was proceeding westward on the crossing between the northeast corner of the intersection of Market and Kearny Streets to the northwest corner of the same, intersection, which is also the easterly point of the gore formed by the intersection of Market and Geary Streets. He passed Lotta’s fountain, a monument standing on the line of crossing about halfway between the corners above referred to, and had in his progress reached a point on the crossing about midway between the fountain and the northwest corner, when an automobile belonging to the defendants, proceeding southward on Kearny Street toward Market Street, and having crossed the line of Geary Street in its progress, and being about to turn into Market Street, collided with the plaintiff. As a result of this collision the plaintiff fell to the pavement, the fall resulting in very severe injury to him.

[742]

It is not claimed that the defendants were operating the ear in violation of any speed law. The car was not moving^ rapidly, the testimony being that upon hitting the plaintiff it was stopped at once. According to the principal witness for the plaintiff, it was going no faster at the time of and just prior to the impact than the plaintiff was walking. But assuming that the evidence introduced by the plaintiff tends to support the claim that the defendants were guilty of negligence, still we think the court committed no error in granting the nonsuit, for the reason that the injuries to the plaintiff were, we think, proximately caused by his own negligence, and for the further reason that the evidence introduced by the plaintiff does not warrant the application of the doctrine of “last clear chance.”