Shipley v. San Diego Electric Railway Co.

MARKS, J.

From the record before us it appears that James F. Shipley, the husband of Mattie E. Shipley and father of Dorothy Louise Shipley, a minor, was killed at about 6 o’clock on the morning of February 8, 1927, in a head-on collision with a street-car belonging to appellant. The deceased was driving his automobile east on University Avenue in the city of San Diego, county of San Diego, state of California, with its wheels astride of or near the south rail of the track of the appellant. On this street at the point of collision there was but a single track, both fails of which were on the south half of University Avenue. Appellant’s street-car was being operated in a westerly direction by a motorman in the employ of appellant. There was also a conductor on the car.

Respondents sought to recover damages in this action, but after an extended trial the jury returned a verdict in favor of appellant. Respondents made a motion, for new trial, which was granted upon the particular grounds of

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errors in four instructions to the jury, requested by appellant and given by the court. The correctness of this order is the question to be considered on this appeal.

The first of these instructions was as follows:

“If you find from the evidence that said James P. Shipley by reason of carelessness on his part placed or was placing himself and his automobile in a position of danger from which he was unable to escape and the motorman of the street car of the defendant, when he became aware of the danger of said James E. Shipley, used every effort on his part to avoid the collision, but was unable to do so, then the motorman of said street car was not negligent and the defendant is not responsible for the collision between the automobile driven by James P. Shipley and said street car and injury, damage or loss which plaintiffs may have sustained, and the plaintiffs are not entitled to any compensation whatever from the defendant and your verdict in that event must be in favor of the defendant and against the plaintiffs.”

In determining the question of whether or not this instruction correctly states the law in this state, we must consider the duty of one operating a street-car upon a city street. It has been held by a long line of well-considered decisions that the public streets of a city are constructed for the use of all travelers, and that a public service corporation operating street-cars has no greater or superior right to use these streets than any other person or persons, with the exceptions, that, as the street-car travels upon its tracks from which it cannot turn, other traffic must recognize this fact and govern itself accordingly, and the driver of a motor vehicle must obey the provisions of the California Vehicle Act. The rights and duties of those in charge of a street-car are reciprocal with the' other users of the public streets. It is, therefore, the duty of one operating a street-car to exercise ordinary care to avoid a collision with another user of the public street of a city.