Armock v. United Railroads of S. F.

KERRIGAN, J.

Action for damages for personal injuries. Plaintiffs, who are husband and wife, sued the United Railroads of San Francisco and the Stringer Storage Company, both corporations, alleging that Dora Armock re

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ceived serious bodily injuries through the concurring negligence of the two companies. Each defendant denied the negligence charged against it, and the Railroad Company pleaded affirmatively contributory negligence on the part of plaintiffs. Trial was had by jury and a verdict in favor of plaintiffs and against defendant Stringer Storage Company was rendered in the sum of two thousand five hundred dollars. The appeal is from such judgment. As ground for reversal it is first claimed that a motion for a nonsuit made by this defendant was improperly denied and should have been granted, for the claimed reason that the evidence showed no actionable negligence against this defendant, but did show a clear case of gross negligence on the part of its codefendant, the United Railroads. In support of their allegations of negligence plaintiffs herein relied solely upon their own testimony. Their evidence in substance shows that on the afternoon of the day of the accident plaintiffs, accompanied by their child, a little girl four years of age, were on their way home. They were proceeding along Eddy Street in an easterly direction toward Webster, and, upon arriving at the intersection of these streets, they were about to cross when they noticed the approach of appellant’s truck being driven on Webster Street, traveling in a southerly direction, and also a street-ear on Eddy Street belonging to defendant Railroad Company, proceeding on said street in a westerly direction. The car, according to their testimony, was traveling about twice the speed of the truck, which was going at about ten or twelve miles an hour. The truck driver, approaching the intersection of the two streets, sounded his horn, but did not notice the approach of the car until he had reached the track, when he speeded up his vehicle in an attempt to clear the same. A collision occurred and the truck was thrown some distance from the track to the place where the plaintiffs and their child were standing, striking them all, killing the little child and inflicting upon Dora Armock the injuries here complained of. Both the plaintiffs testified that no warning was given by the car of its approach. Under these circumstances it is claimed that the driver of appellant company was not negligent and discharged his duty to the Armocks whose pathway crossed his, and that these facts not only failed to show negligence on the part of appellant Storage Company,