Cooper v. Vucinich

NOURSE, J.

This is an action for damages for injuries to person and property resulting from a collision between an automobile truck owned and operated by plaintiff and a seven-passenger touring ear belonging to defendant and operated by him, through his agent, as a jitney bus. The collision occurred September 14, 1919, at the southwest corner of the intersection of Castro and Seventh Streets, in the city of Oakland. Judgment was rendered in favor of plaintiff for the sum of $500. Defendant appeals, attacking certain findings, as not supported by the evidence, to the effect that plaintiff was not guilty of contributory negligence, but was driving carefully on the right-hand side of Castro Street and that defendant was negligent, which negligence was the cause of the damage.

Defendant states: “Our sole contention of plaintiff’s contributory negligence is based upon the’ fact testified to by him that when he reached the intersection of Seventh and Castro Streets he came almost to a stop and then proceeded to cross Seventh Street at a rate of approxi

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mately seven miles per hour directly in the path of the jitney automobile. ’ ’ Hie argues from this that when he (plaintiff) came almost to a stop the driver of the jitney was entitled to assume that the truck was stopping to allow him to pass and to continue on his course along Seventh Street; that when instead of stopping the truck proceeded to slowly cross Seventh Street, the emergency then arising necessitated the driver of the jitney to turn to the south (his left) side of the street in an effort to pass in front of the truck and avoid a collision, because the north side was blocked by the truck (which was fifteen feet long), and to continue on his course between the tracks would place him in the direct path of the truck; that when the jitney swerved to the south side to pass in front of the truck the driver of the truck had ample opportunity to stop it and avoid the collision, and his failure to do so amounted to negligence.

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The findings referred to will not, of course, be disturbed on appeal for a mere conflict in the evidence. The question raised by defendant is whether the evidence relied on constitutes negligence on the part of plaintiff as a matter of law.