Wilson v. Mardakis

STURTEVANT, J.

Shortly after 10 P. M. on the night of April 29, 1927, plaintiff, a boy thirteen years of age, and a friend, Arthur Mahoney, of about the same age, boarded a west-bound McAllister Street car with the purpose of transferring at Larkin Street to go to their homes

[680]

on Ellis Street. Upon reaching Larkin Street the Mahoney boy alighted from the rear end of the car, ran around the back and across to the southerly side of McAllister Street with the object, apparently, of taking a north-bound Larkin Street car at the southeast corner of Larkin and McAllister Streets. The plaintiff followed. After he had taken a few steps to the south he was hit by a taxicab traveling easterly on McAllister Street driven by an employee of defendant.

The defendant claims he was not negligent. There was evidence that the taxicab entered the intersection of the two streets traveling at a speed of fifteen miles or more and that it so continued to travel until the accident; that it was riding the southerly track on McAllister Street; that it was lighted and there were such other lights that the persons in the street could be seen and that they were seen. There was evidence that the space between the southerly track and the curb was not occupied by parked vehicles for a distance of 100 or 125 feet east of Larldn Street. There were facts introduced in evidence from which it may be argued that the taxicab was traveling at a speed in excess of fifteen miles per hour. The plaintiff contends that the taxicab was operated negligently because the driver, did not drive as close to the right-hand curb as was practicable under the circumstances, because the taxicab was being driven at an excessive rate of speed, and because it was not being driven in a careful and prudent manner and at a rate of speed that was reasonable and proper, having regard for traffic and the use of the highway. There was evidence which, if the jury believed it, would have justified the jury in placing its verdict on any one or all of the foregoing theories. The defendant attempts to justify the acts of his agent by claiming that no one of the theories mentioned is wholly sustained as a charge. But he is responsible for the combination of facts as well as for the separate factors. This court is unable to say that the implied finding that defendant was negligent is not supported by the evidence.