McMullen v. Davenport

LANGDON, P. J.

This is an appeal by the defendant from a judgment against him for $1,250 in an action for damages sustained by reason of personal injuries suffered by Catherine McMullen. The injuries were caused by being struck by an automobile driven by the defendant. The automobile was being driven along East Fourth Street, in the city of Los Angeles, at its intersection with Mott Street, at about 7 o’clock in the evening. The plaintiffs, husband and wife, were walking on the easterly sidewalk of Mott Street, going south. About the time the plaintiffs reached the northerly side of East Fourth Street, a street-ear approached from the west, coming easterly along the southerly track (the track farthest from the plaintiffs) of the street-car line on East Fourth Street, and defendant approached Mott Street coming in the same direction on the southerly side of the street and on the southerly side of the street-car track. East Fourth Street, it is stipulated, is at that point about eighty feet wide, including the sidewalks on each side, and Mott Street is about fifty feet wide. There was a light at the intersection of the streets and it was sufficiently light to see clearly. It appears that the automobile was hidden from the view of the plaintiffs up to the time the car stopped on the west side of Mott Street—and at that point the automobile passed the car and crossed the street. The main question argued by the appellant is that the plaintiff, Catherine McMullen, was guilty of contributory negligence as a matter of law. The answer to this question also disposes of several of the objections of the appellant in regard to instructions, as well as the objection that the evidence is insufficient to sustain the verdict. It is stated by appellant that the testimony shows that Oatherine McMullen was looking at the street-car to see whether or not it would stop; that she never looked for automobiles; that she recklessly and carelessly

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took several steps forward from the center of the street-car track, where she was standing when the gong on the streetcar was sounded for it to start, without looking for automobiles. [1] It is argued that, under these circumstances, Catherine McMullen was guilty of contributory negligence as a matter of law, and the question of negligence was not one for the jury. But we think the testimony is susceptible of a different construction, which the jury was justified in giving it. The defendant testified that his automobile passed the street-car just as it came to a stop on the west side of Mott Street, and it is urged that if Catherine McMullen had looked for an automobile she would have seen the defendant’s car before she stepped off of the street-car. But the plaintiffs 'both testified that they looked in the direction from which the automobile came before starting across the street, and also when they were in the middle of the street-car track, and that they did not see the automobile driven by the defendant. Defendant admits that he did not sound a gong or give any warning signal. He testified that he saw the plaintiffs when they were approaching, but thought there was no danger and did not sound any warning. The testimony was that the automobile was very close to the car track, probably only about two feet away. The jury found that it was going at a speed in excess of twenty miles an hour. According to the defendant’s own testimony, the automobile could not have been seen by the plaintiffs until about the time the street-car stopped on the west side of Mott Street. The testimony of the two passengers upon the street-car was that the automobile passed where they were sitting on the front end of the street-car at the same instant that the motorman rang his gong as a signal for the car to start. It was at this instant, according to the plaintiffs’ testimony, that Mrs. McMullen, seeing no danger, stepped off the track to continue her way across the street. When the automobile emerged to view at that time, there was but a distance of less than fifty feet to be covered before it struck the plaintiff. Going at a rate of twenty miles an hour (and the jury found it was going at a greater speed than that) that distance would be covered in about two seconds. In that instant of time plaintiff would have to observe the automobile, realize her danger, think and act upon the thought in step