Hildebrant v. City & County of San Francisco

Plaintiff sued for damages suffered by him while attempting to board a street-car operated by the defendant. The accident occurred about 9:30 P. M. on the 13th of November, 1919. Plaintiff had been a passenger on *Page 591 a Market Street car operated by the defendant coming east through the Twin Peaks tunnel. He obtained a transfer and alighted from said car at Market and Church Streets. He then went to the southwest corner of Market and Church Streets and there waited on the sidewalk for the Church Street or "J" car, which came west on Market Street and turned at that point to go south on Church Street. At that point four street railway tracks were maintained on Market Street, the municipal or "J" line occupying the outer or northerly track. As this car approached the intersection it made a wide curve across Market Street passing over these four tracks, and, as was customarily the case, slowed down to a speed of about three and a half miles an hour. As the "J" car on this occasion crossed Market Street into Church the plaintiff walked out to a white line upon the pavement which he at sometimes described as a safety station but later explained to be merely a line parallel with the curve or what is known as a danger line to guard passengers and vehicles from the swing of the car on the curve. He did not signal the car to stop. He testified that the motorman saw him — a mere conclusion on his part which was expressly denied by the motorman on the stand. The speed of the car was not reduced from that maintained while it was rounding the curve crossing the tracks on Market Street, and there is not a word of evidence to support plaintiff's contention that the car slowed down as an invitation to him to board it. As soon as the car reached the straight line of Church Street it was increased to the usual speed and after it had passed the white line, or safety mark, the plaintiff attempted to board it, making "a few strides to get on it." While thus attempting to board the car he was holding a bundle of boards under his left arm. He got his feet upon the lower step of the car and was holding on to the stanchion with his right hand and attempting to reach the platform when the increased speed of the car jolted him off and he fell to the pavement, sustaining the injuries which are the basis of the action. The cause was tried before the court without a jury and judgment in the sum of two thousand dollars was awarded to the plaintiff, from which the defendant prosecutes this appeal under section 953a of the Code of Civil Procedure. *Page 592 [1] It is conceded by respondent that the main question involved is whether or not he was a passenger at the time of the injury. He also concedes that where a person is injured in attempting to board a car three things are necessary to bring about the relation of passenger and carrier: "1. He must have signaled or otherwise attracted the attention of the operator of the car that he desired passage. 2. He must have been seen or could have been seen by the operator of the car. 3. The car must have slowed down sufficiently to show his acceptance." (Davey v. Greenfield, 177 Mass. 106 [58 N.E. 172].)