McGlothin v. Larussa

THE COURT.

This isan appeal from a judgment entered upon a verdict against defendants and in favor of plaintiff.

The action was for damages alleged to have been sustained by plaintiff while a passenger in a jitney bus, operated by defendant Larussa, which came into collision with a truck operated by the City and County of San Francisco.

The municipality claims that the implied finding that its employee was negligent is unsupported; that the evidence shows that the sole proximate cause of the injuries complained of was the negligence of defendant Larussa, and further, that the verdict is excessive notwithstanding an order of the trial court reducing its amount. Appellant Larussa has filed no brief.

At about 8 o’clock A. M. of November 22, 1929, the jitney bus in which plaintiff was a passenger was proceeding north on the right-hand side of Valencia Street, in San Francisco. It was testified that when the jitney reached the intersection of Valencia Street with Nineteenth Street, which runs east and west, it passed the southerly curb line of Nineteenth Street at a speed of from thirty to thirty-five miles an hour. As it passed into the intersection its driver saw a five-ton truck, twenty-one feet long and seven feet wide, owned by the municipality and which had been traveling south on

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Valencia Street, make a left-hand turn diagonally across the northerly half of the intersection and directly in front of the jitney. The truck passed to the north of the button in the center of the intersection, and, although the driver of the jitney attempted to avoid it, a collision occurred. The testimony was sharply conflicting as to the speed of the vehicles, but sufficient appears to justify the conclusion that the speed of both was excessive under all the circumstances.

The municipality insists that certain witnesses whose testimony was favorable to plaintiff and unfavorable to defendants were contradicted in material particulars by other witnesses, and that their testimony should have been rejected by the jury. Without quoting therefrom it will suffice to say that we have read the testimony in question, and the same was not inherently improbable or impossible of belief.