Abelseth v. City & County of San Francisco

STURTEVANT, J.

The plaintiffs, husband and wife, commenced this action to recover damages alleged to have been incurred from injuries sustained by Mrs. Abelseth when she was hit about 2:15 P. M., July 29, 1929, by one of the defendants’ street-cars. The accident happened on Market Street east of Eighth. Street. Near the place of the collision there is a pedestrian. lane crossing Market Street. Mrs. Abelseth had been in the Crystal Palace Market and came out with a package in her hand and was in the act of crossing from the south .side of Market to the north side. It was the contention of the plaintiffs that as she was in the pedestrian lane in the act of crossing Market Street one of the defendants’ cars approached from her left and knocked her down. On the other hand it was the contention of the defense that she was carrying in her left arm a bundle that obscured her view of the traffic approaching from the west and furthermore that she was not in the lane but was some distance east walking diagonally across Market Street, that she was not hit but fell of fright. The plaintiffs further contend that under the doctrine of the last clear chance the defendants were liable whether Mrs. Abelseth was within or without the pedestrian lane. The jury returned a verdict in favor of the defendants and the plaintiffs have appealed and have brought up a bill of exceptions.

1. The plaintiffs attack a large number of instructions which were given at the request of the defendants. Under this attack it is claimed the court instructed the jury on facts by giving six different instructions. An examination of each of the six discloses that one is subject to that attack. Instruction XXXIII was as follows: “The maintenance of four street car tracks upon said Market

[555]

street is not a nuisance

per se,

that is, in and of itself, as such street car tracks have been so laid and

cars are being operated thereon in conformity with the law.”

It was- vulnerable to the attack made by the plaintiffs. It told the jury that the defendants were operating the cars in conformity with the law; but that was one of the principal questions of fact at issue.