McDonald v. Southern Pacific Co.

LANGDON, P. J.

This is an appeal by the defendants from a judgment against them for twenty-five thousand dollars in an action to recover damages for personal injuries sustained by plaintiff and alleged to have been caused by the negligence of the defendants. The defendant company is the owner and operator of the electric train which caused the injury and the other defendant is the motorman who operated the same.

The defendants admit, in the briefs filed on their behalf in this court, that, from the conflicting evidence upon the

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subject and the implied finding of the jury, this court must start from the premise that the negligence of the defendant was established. The question argued by appellant upon appeal is that the evidence offered by plaintiff on his own behalf convicts him of contributory negligence, barring his recovery.

The accident occurred near the intersection of Fourteenth and Franklin Streets, in the city of Oakland. Franklin Street runs north and south. It is intersected by Fourteenth Street, which runs east and west. The block to the east of Franklin Street, between Fourteenth and Thirteenth, is used by the appellant company as a depot where trains to and from San Francisco have - their terminals. Double tracks approach the terminal from a northerly direction on Franklin Street and turn in a curve into the depot premises, and in doing this, necessarily, cross, the east sidewalk on Franklin, between Fourteenth and Thirteenth Streets. In walking in a southerly direction on the east sidewalk of Franklin Street, opposite the depot premises, the first track to be passed is that used by the outgoing or west-bound San Francisco trains, while the second track is used by the incoming or east-bound trains. All of these incoming trains come to a stop on the north side of Fourteenth Street before proceeding over that street and into the depot premises. The distance between the outgoing and incoming tracks is approximately thirty-five feet. The accident occurred in the afternoon. Plaintiff was walking in a southerly direction on the public sidewalk on the east side of Franklin Street, approaching its intersection with Fourteenth Street. Upon arriving at the north side of Fourteenth Street he looked both ways for traffic and proceeded across the street. When at about the center of Fourteenth Street he looked back and saw a single south-bound car of the defendant at a stop on the north side of Fourteenth Street near the “stop” sign. He continued to cross Fourteenth Street and after crossing the sidewalk on the south side of Fourteenth Street proceeded on the east sidewalk of Franklin Street across the tracks of the defendant, which turned off Franklin Street on a curve and into its station property. When he arrived at about the center of the