Harris v. Union Transfer Co.

HOUSER, J.

This is an appeal from a judgment on a verdict in favor of the defendant in an action for damages

[676]

brought by a guardian of minor children whose mother, Marion Harris, was killed in an automobile accident.

It appears that Mrs. Harris had been standing on the sidewalk near the intersection of two streets, at which point it was her intention to board a street-car. As the streetcar approached Mrs. Harris left the sidewalk and walked near the rails of the street-ear track. As she did so a man with whom she had been conversing on the street corner called out to her that she could ride with him. At just about that time Mrs. Harris turned, gave a scream and either walked very rapidly or ran toward the curb, and in doing so was struck and run over by an automobile truck owned and operated by defendant, and which truck had been following the street-ear and which was passing the street-car at that time. The evidence further shows that at the time the accident occurred it was a clear day and that there was nothing to obstruct the view of either the driver of the truck or that of Mrs. Harris as to any of the immediate surroundings; but the evidence is conflicting as to the position of the truck with relation to either the streetcar or to Mrs. Harris at the time the street-car stopped for the purpose of taking on passengers. The evidence is also conflicting as to the position occupied by Mrs. Harris with relation to the street-car just before she attempted to return to the sidewalk, as well as to the position of Mrs. Harris and the truck with relation to the curb at the time the truck struck Mrs. Harris.

Appellants contend that there are several reasons why a new trial should he granted; but for the purposes of this appeal it is deemed necessary that but one of them should be considered by this court. It has to do with one of the instructions given by the court to the jury as follows: 11 The court instructs the jury that every person has the right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise, it is not negligence to assume that he is not exposed to' danger which can come to him only from violation of law or duty by such other person. That, however, does not mean or go to the extent of saying that anybody can proceed without taking care and looking to see where they are going. It is for you absolutely in this case to say—I am not going to tell you whether the plaintiff was