Arens v. United Railroads of San Francisco

RICHARDS, J.

This is an action brought to recover damages for personal injuries sustained by the plaintiff as the result of a collision between his wagon, upon which at the time the plaintiff was riding, and a street-car of the defendant being operated by its employees on Twenty-fourth Street in the city of San Francisco.

The evidence

showed

that on the eleventh day of October, 1906, about 2:30 o’clock in the afternoon, the plaintiff was

[715]

driving his one-horse wagon on Douglass Street in that city, and turned into and proceeded easterly along and down Twenty-fourth Street, which at that point has a considerable downward grade. The latter street was at that time in the course of improvement, and its sides were so torn up in preparation for bituminizing as to leave the only available place for driving the space occupied by the tracks of the defendant. When the plaintiff turned into Twenty-fourth Street he looked up the street and saw the car of the defendant which traverses that street standing at the top of the grade, which is also the terminus of the car line. According to the plaintiff’s testimony his attention was next directed to the car by his companion, and he then observed it within about forty feet of his wagon coming rapidly down the hill. There is a conflict in the evidence as to whether any bell was rung or other signal given before the plaintiff thus observed the car, both the plaintiff and his companion asserting that they heard- no such signal, while the employees in charge of the ear asseverate that the usual signal was rung all the way down the hill. The plaintiff, upon discovering the approaching car, undertook to turn out sufficiently to permit it to pass, but failed or was unable to do so in time, and his wagon being struck by the car he was thrown out and injured.

Upon the trial of the case before the court without a jury the court found that the defendant was guilty of negligence in the respects averred in the complaint, and that the plaintiff was not guilty of contributory negligence, and it thereupon rendered judgment in favor of the plaintiff for the sum of two thousand dollars, from which judgment and from the order of the court denying a new trial the defendant appeals.