Klopper v. D. J. & T. Sullivan Co.

SPENCE, J.

Following a trial by jury, judgment upon the verdict was entered in favor of defendants, from which judgment plaintiff appeals.

The action was brought to recover for personal injuries alleged to have been sustained by plaintiff as a result of negligence upon the part of defendants. The accident occurred at aibout 1 o’clock on the morning of November 5, 1929, on Mission Street near Ocean Avenue, in San Francisco. Pursuant to a permit granted by the board of public works, defendants were engaged in moving a sehoolhouse twenty-four feet in width along Mission Street. At the time in question the sehoolhouse was not in motion, but was temporarily standing in the middle of the street. There were lighted red lanterns hanging close to the ground at the four corners of the sehoolhouse. Plaintiff collided therewith while operating his automobile in a northerly direction along Mission Street. Both negligence and contributory negligence were issues under the pleadings and the trial court gave instructions on these issues.

Appellant contends that the trial court erred in admitting certain evidence and in the giving and refusing of certain instructions. Practically all of appellant’s contentions are based upon his theory that the general provisions of the California Vehicle Act relating to the width of vehicles and their loads, the parking of vehicles and the required lights on vehicles and their loads, were applicable to this sehoolhouse. While it is true that the sehoolhouse had been moved to the point where it was situated by placing it on three small dollies and drawing it with a

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truck, we find nothing in the Vehicle Act which leads to the conclusion that the above-mentioned general provisions relating to ordinary mobile equipment and loads were applicable under the circumstances. On the other hand, we believe that the regulations relating to the moving of buildings under permit governed.

The evidence which appellant claimed was erroneously admitted consisted of article VI, chapter I, section 9, subdivision 1, of the charter of the city and county of San Francisco giving the board of public works the general control of public streets and specific authority to prescribe rules and grant permits “for the moving of buildings through the streets”; also a certain ordinance of the city and county of San Francisco relating to permits for moving buildings; and also the particular permit issued to the respondent corporation by the board of public works granting permission to move the sehoolhouse in question. All of this evidence was properly admitted. In the absence thereof it might well have been contended that the placing of a building in the street constituted a nuisance within the meaning of section 3479 of the Civil Code, which covers the “unlawful obstruction” of the free use of a public street. The evidence was proper to show that obstruction was not unlawful. Appellant’s contention that the charter provisions mentioned conflict with and were superseded by section 83 of the California Vehicle Act cannot be sustained. It would be sufficient to point out that it is provided by subdivision 6 of that section that the general provisions of subdivision