Santina v. Tomlinson

LENNON, P. J.

This is an appeal from a judgment in favor of the plaintiff in the sum of three hundred dollars damages.

Peter Santina, the plaintiff, was riding on a street-car traveling in a northwesterly direction along Columbus

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Avenue, in the city and county of San Francisco. When the car approached the crossing of Vallejo Street and Columbus Avenue the plaintiff asked the conductor to stop at Vallejo Street. There is a conflict in the testimony as to whether or not the car had fully stopped when the plaintiff alighted, but the testimony is clear to the effect that the plaintiff swung off the front left-hand side of the car. Immediately upon reaching the ground plaintiff started for the corner of Columbus Avenue and Vallejo Street. A Ford automobile was parked along the curbing on Columbus Avenue and plaintiff descended from the street-car in front of this machine. Defendant, Dr. Tomlinson, driving his automobile, was traveling in a southeasterly direction along Columbus Avenue, and was passing the parked Ford car, driving the wheels of his automobile astride the outer rail of the westerly car track at the time plaintiff alighted. The plaintiff had taken a couple of steps when he was struck by defendant’s automobile. The car upon which the plaintiff was riding was composed of three sections, an open front, a closed middle section, and an open back, and passengers could, if they desired, board or alight from the car without interference on either side thereof.

The principal point made in support of the appeal is that the trial court erred to the prejudice of- the defendant in permitting in evidence over objection a traffic ordinance of the city and county of San Francisco which provides that “Every person riding, driving, propelling or in charge of any vehicle upon any street shall keep such vehicle at least six feet on the right-hand side from the running-board or lower step of any street-car which is stopping for the purpose of taking on or discharging passengers.”

The only objection made to the introduction of the ordinance in evidence was that it was immaterial, and it is now urged that this objection was well taken, because the plaintiff failed in the first instance to plead the ordinance and that the evidence adduced in support of the plaintiff’s case did not establish, nor tend to establish, any fact or set of facts upon which the ordinance in question had any natural legitimate bearing or influence. With reference to the first phase of this contention it will suffice to say that in actions of this character the existence of an ordinance and the fact of its violation are essentially matters of evidence and not of plead