Unger v. San Francisco-Oakland Terminal Railways

RICHARDS, J.

This appeal is from a judgment in the plaintiff’s favor, after a jury trial, for damages resulting

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from a collision between an automobile in which the plaintiff was riding and a street-ear of the appellant. The contentions of the appellant are chiefly predicated upon the evidence in the case, which will be reviewed in dealing with the various points made in the course of these contentions.

The collision occurred upon East 12th Street, in the city of Oakland, along which the street-car tracks of appellant extend, and at a point thereon a short distance east of the intersection of 12th Street with Fallon Street. The accident occurred between 5:30 and 6 o’clock in the evening of April 7, 1919, at which time there was much travel by street-cars, automobiles, and other vehicles at and in the vicinity of the immediate point where the collision took place. The plaintiff, immediately prior to the time of said collision and of his injuries, had been riding in an automobile truck owned and driven by one Parley Cook, and it is the appellant’s first contention that the plaintiff’s acts and conduct in riding in said automobile truck prior to and at the time of said accident constituted negligence as a matter of law which should have prevented his recovery in this action. This contention is based upon the following state of facts.

On the afternoon of April 7, 1919, the plaintiff, while walking along East 12th Street, observed Parley Cook, with whom he was acquainted, in front of his residence trying to start his said automobile truck. The machine in question was an old Rambler touring car made over into a truck, which Cook had purchased that day and with the mechanical operation of which he had theretofore not been familiar. He was having difficulty in getting the machine started, and the plaintiff, observing this, went up to offer what suggestions he could in aid of Cook’s effort to start the machine. The plaintiff was somewhat familiar with this type of car, having driven one like it before. lie suggested to Cook that he should drain his carburetor, and he did so, and then had no difficulty in starting the machine. Cook was going down the street for the purpose of getting used to the ear and plaintiff asked if he could help him, and said if he could he would be glad to ride down-town with him, and if there was anything he could show him he would be glad to do so. Cook assented to this and they boarded the car, the plaintiff knowing that Cook