Weihe v. Rathjen Mercantile Co.

KERRIGAN, J.

This is an appeal hy defendant from an adverse judgment and from an order denying its motion for a new trial in an action for damages for personal injuries suffered hy the plaintiff, Julia Florence Weihe, through being struck by an automobile of the defendant.

An employee of the defendant, in charge of and operating said automobile, in effecting a delivery of goods, drove it to the left (south) side of Sacramento Street, in San Francisco, and there stopped on that side a short distance from the east line of Fillmore Street. The goods being delivered the driver started the automobile and collided with the plaintiff just as she stepped from the sidewalk at the southeast corner of Sacramento and Fillmore Streets in order to board a streetcar on Sacramento Street, resulting in the injuries to the plaintiff set forth in the complaint.

In support of its appeal the defendant does not claim that the evidence is insufficient to warrant the jury in finding that the defendant was guilty of negligence, its contention in this respect being that the ease should have been taken from the jury on the ground that the evidence showed the plaintiff to have been guilty of contributory negligence.

[304]

There is no merit in this point. The question of whether or not the plaintiff was guilty of contributory negligence in stepping from the sidewalk in front of the automobile was, under the attending circumstances, clearly one for the determination of the jury. '

The other grounds upon which defendant relies for a reversal of the judgment are confined to instructions to the jury given, modified, or refused.

One of the several acts of negligence alleged in the complaint was the violation by defendant of a certain section of what is commonly termed the traffic ordinance of the city and county of San Francisco, which was „read in evidence to the jury. .Summarized, it required the driver of a car upon the public streets to drive in a careful manner, having in view the safety of pedestrians. Another section of this ordinance provides that such driver shall on all practical occasions travel on the right-hand side of the street and near the right-hand curb thereof. The trial court, after briefly referring to the ordinance, instructed the jury that if the employee of the defendant in the course of his employment violated either or both of the provisions of the ordinance just referred to, the defendant was guilty of negligence; and that if in consequence of such negligence the plaintiff was injured, she was entitled to recover damages. This instruction made no reference to the defense of contributory negligence on the part of plaintiff, which was an issue in the case; and was, therefore, not in itself a complete and correct statement of the law; but the court elsewhere in its charge fully instructed the jury on the subject of contributory negligence. When the instructions are read together and construed as a whole, they are consistent with each other and not confusing, and appear to fairly cover the point discussed. It cannot be said, therefore, that the jury was misled.