Collins v. California Street Cable R.R. Co.

NOURSE, J.

Plaintiff sued for damages for personal injuries caused by his being struck by a cable car operated by the defendant. The cause was tried before a jury and resulted in a verdict for the plaintiff in the sum of $3,335. From the judgment following the verdict the defendant has appealed upon a bill of exceptions.

Testimony of the eye-witnesses to the accident is somewhat conflicting, but the verdict of the jury having favored the plaintiff it is necessary on this appeal to take the facts as

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they appear in the testimony most favorable to him. Pursuing this course we find the plaintiff, a man of seventy-one years of age, was attempting to cross California Street at its intersection with Van Ness Avenue at about 2 o’clock in the afternoon, passing from the northwesterly to the southwesterly corner; that before leaving the sidewalk on the northwesterly corner of this intersection he looked in both directions and saw an east-bound cable car approaching on the southerly track but did not see any car approaching on the northerly track from the east; that as he approached the northerly rail of the double tracks of the company he again looked in both directions but saw no car approaching from the east. The east-bound car had then stopped at the intersection with Van Ness Avenue and plaintiff walked over to a point between the two lines of track and stopped approximately at the middle of the standing car, as he was unable to pass behind it because an automobile which had been following behind this car blocked his passage. Plaintiff stood in this position in a space between the two sets of rails of six feet one inch, but which was narrowed to two feet one inch when ears were passing each other on the two sets of rails. While standing in this position the eastbound car started on its way and plaintiff turned his position slightly to the west in order to observe the automobile which was closely following this car. While standing in this position he was struck by a west-bound car and thrown violently to the pavement, causing the injuries for which he sued.

The theory of the plaintiff is that he thus stood in a position of danger because of the east-bound car having stopped at the intersection and because of the automobile closely following it, and that while in this position of danger the defendant’s agent operating the west-bound car, though he observed plaintiff’s perilous position before he started to cross Van Ness Avenue (a distance of 125 feet), nevertheless continued on his way without stopping until after the plaintiff had been struck. It is the theory of the defendant that its agent was not negligent in the operation of his car and that plaintiff was guilty of contributory negligence, but in answer to this the plaintiff argues that the defendant’s agent could have avoided the accident if he had en