Phillips v. Pacific Electric Ry. Co.

Plaintiff recovered judgment against defendants for damages sustained by him in a collision between *Page 642 his automobile and a street-car operated by defendants. The defendants have appealed from the judgment.

The collision occurred on Holt Avenue in the city of Pomona. Holt Avenue runs east and west. There is a single street-car line along the street in the south half thereof. It was stipulated by the parties "that from the south rail of the street car track to the south curb of Holt avenue was 25 feet 6 inches and that the distance from the north rail of said track to the north curb line of Holt avenue is 37 feet, and that it is 5 feet between the rails." On either side of the street, between the curb and the sidewalk, there is a row of large pepper trees. Street-cars are run along the track in both directions. The collision occurred about 9 o'clock in the evening, May 5, 1923. Four automobiles were going east along the south side of the avenue, plaintiff being in the rear, driving a Ford touring car. Ahead of them, coming from the east, was the defendants' street-car. Plaintiff attempted to pass to the left of the automobile ahead of him and in doing so came into collision with the street car. His automobile was wrecked and he was seriously injured. The plaintiff testified: "I had not driven along Holt avenue prior to the collision, but I had crossed Holt avenue. . . . I was traveling between 15 and 18 miles per hour. . . . At that time I did not notice that there was only a single railroad track on Holt avenue. I saw one automobile ahead of me. . . . I was driving directly behind the car that was in front of me. This car was about 6 feet south of the railroad track. Another automobile came along and passed me. . . . It came out on to the street car track and it then passed the car that was in front of me. At this time I gradually came up on the car that was in front and I followed the other car around the car that was in front of me. I was approximately 40 feet behind the car that passed me. It was a Buick . . . touring car and had a top on it. . . . The first time I saw the street car this Buick dodged off the track and there was a light coming rapidly towards me and I tried to get off the street car track but the street car struck me. . . . I attempted to dodge it. . . . I did not know then what it was. . . . The lights on my automobile were burning at the time of the accident. . . . I had been driving several blocks on Holt avenue before the accident, at least three or four blocks. I drove right along by the street *Page 643 car track. I saw the street car track. When I drove out on to the track to pass the car ahead of me I saw the track then and I supposed it was a railroad or street car track. . . . After I got on the track I drove along the track and I traveled about 75 feet before the collision occurred. . . . I hadn't yet passed the other car that I had been following. I was right up to it. Probably the front end of my car was even with the back end of his (Mitchell's car) at the time of the accident, or probably a little bit further than that. A man named Mitchell was driving the car I was passing. . . . As I traveled on the railroad track I was astride the south rail. . . . The street car was lighted. I saw a light. I suppose it was the headlight I saw. . . . I didn't know cars run on those tracks. . . . I did not see any lights at the top of the street car. I didn't have time to look very much. . . . I did not see the street car before I drove on the track. I did not make any effort to ascertain whether or not a street car was coming before I drove on the track. I didn't expect a street car on that side. I don't remember that I saw the tracks before I drove on. . . . I looked straight ahead and there was an automobile ahead of me. . . . The reason I could not see the street car was because the automobile was immediately ahead of me. The large Buick automobile was ahead of me on the street-car tracks at that time. . . . I did not know it was a single track." G.V. Moser testified that "the street car was going over 30 anyway, not less"; that the plaintiff's automobile was thrown or carried to a point about 80 feet west of the place of the collision; that he measured the distance from the point of collision to the place where the street-car stopped after the collision and that it is 250 feet; that plaintiff "was traveling directly straddle of the south rail"; that the street-car had one headlight and the lights were on inside the car. "They were very dim. They are never very bright. . . . The street car had just one headlight. It was rather dim. The headlight was approximately as high from the street as an automobile light would be." Other witnesses for plaintiff corroborated the testimony given by plaintiff and Moser. One of them gave the distance from the point of the accident to the place where the street-car stopped as 265 to 275 feet. Another witness testified that he was driving west on Holt Avenue at the time of the accident, traveling *Page 644 at the rate of 23 to 25 miles an hour, when the street-car passed him, and that thereafter he "traveled . . . about 100 feet when the accident happened, and the car had traveled five or six hundred feet while I was traveling 100 feet." While the estimate of this witness is doubtless erroneous, from his testimony, together with that of other witnesses, including the distance the car traveled before coming to a stop, the jury was justified in finding that the street-car was running at an excessive speed.