Lewis v. Tanner

SHAW, J.

In this action plaintiff sought recovery of damages for personal injuries alleged to have been sustained

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by colliding with an automobile which defendant negligently operated upon a street at a point where the former was crossing.

Judgment went for plaintiff, from which defendant appeals.

While conceding his own negligence, appellant insists that his plea of contributory negligence, of which he alleged plaintiff guilty, was clearly established by the evidence to the effect, as claimed, that plaintiff while crossing the street neglected to use proper precautions for his own safety in that, conceding the automobile was running on the wrong side of the street and at an unlawful speed, plaintiff might have heard the same and could have seen it had he looked in the direction from which it was approaching. As we gather from the record, and in the absence of any statement as to the existing conditions made by counsel for either party, it appears that the accident occurred on Colorado boulevard, which extends east and west and, measured between curb lines, is eighty feet in width. At the time in question, about 6:10 P. M., November 21st, plaintiff, after looking in both directions and finding the street free from travel, stepped from the curb on the southerly side and proceeded to cross the street diagonally, going in a northeasterly direction. Before he reached the opposite side he was struck by defendant’s car, which at the time was being operated at a speed of some thirty-eight miles per hour. Not only was the speed thus unlawful, but there is testimony and circumstantial evidence tending strongly to show that the car was running on the left side of the street near the curb line and struck plaintiff after he had passed the center of the street, as a result of which he had little recollection of the occurrence other than that,

immediately

upon his sensing a bright light which was that upon a car some five hundred feet back of that which caused the injury, and a dim light with which latter it appears defendant’s car was equipped, he was rendered unconscious. Indeed, the occurrence was so sudden that plaintiff from his personal knowledge could not say he was struck by an automobile. This evidence, together with testimony not spoken but indicated by designations upon a map of the street and vicinity used at the trial, which in so far as not inconsistent with the record, must, since the burden of establishing the defense rested upon de