Cassinelli v. Bennen

THE COURT.

About 4:45 o’clock in the morning, in the month of July, 1927, respondent, Giovanni Cassinelli, while on his way to work, alighted from a south-bound Valencia Street car at Eighteenth Street in San Francisco, and after the car continued on he proceeded to cross to the east side of the street. Just as he was about to step on the sidewalk he was struck and injured by a jitney bus driven by the appellant Herman Bennen. As a result of the injuries received he brought this action for damages and a jury awarded him a verdict of $3,000. From the judgment entered thereon this appeal was taken, three grounds for reversal being urged, first, that the evidence fails to show negligence on the part of the appellant; second, that the evidence shows contributory negligence on the part of respondent; and third, that the court committed error in giving certain instructions to the jury.

The evidence relating to the cause of the accident consisted of the testimony given by the two parties. Respondent testified that when the street-car stopped he stepped down from the rear platform thereof into the center of the safety zone and waited for the car to continue on; that after the car crossed Eighteenth Street he looked in a northerly direction, toward Market Street, and no vehicle being in sight he started to walk easterly across Valencia Street; that when he reached a point between the north and south-bound car tracks he again looked to the north and also to the south, up and down Valencia Street, and observed an automobile approaching on Valencia Street from the south; that it was then on the farther side of the Eighteenth Street intersection, traveling northerly along the north-hound track; that when it neared the safety zone on the southerly side

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of the intersection it turned off the track to the right to go around the safety zone, and upon passing the safety zone and reaching the middle of the intersection it turned back again slightly toward the north-bound track, at which time he had reached a point about midway between the northbound track and the east curb line of Valencia Street and that just as he was about to step up on the curb he was struck by the automobile and knocked part way up on the sidewalk, the automobile proceeding on about ten feet, and running part way up on the sidewalk before it was brought to a stop. He further testified that the weather was clear and dry. The driver’s view of the Eighteenth Street intersection was “obstructed”, as that term is defined by section 113 of the California Vehicle Act [Stats. 1923, p. 517], and consequently the limitation of speed across the intersection was 15 miles an hour. Respondent testified that on approaching and entering the intersection the automobile was traveling between twenty-five and thirty miles an hour.