Leiner v. Eng-Skell Co.

NOURSE, Acting P. J.

Plaintiff sued for damages resulting from being struck by an automobile, which was driven by the defendants, while plaintiff was standing upon the sidewalk adjoining a public street in the city and county of San Francisco. The cause was tried before a jury and resulted in a verdict • in favor of plaintiff in the sum of five thousand dollars. From the judgment upon the verdict; the defendants appeal upon typewritten transcripts.

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The ease made by plaintiff was that while he was standing upon the sidewalk the truck suddenly swerved from its course in the street so that the front and rear right wheels thereof came over the curbing and proceeded for a distance along the sidewalk so that the truck struck plaintiff, throwing him against an iron pole and causing the injuries complained of. In defense evidence was offered that because of the condition of the surface of the highway the truck suddenly skidded to the right so that the front and rear right wheels came flush with the curb and that the overhang of the truck struck the plaintiff, who under defendants'" theory was standing too close to the edge of the sidewalk. Plaintiff put in evidence provisions of an ordinance of the city and county of San Francisco which made it unlawful for any person (among other things) “to drive an automobile upon or along any public sidewalk.” The trial court read this ordinance to the jury and gave an instruction to the effect that if it were found that the operator of the automobile was driving it in violation of this ordinance “that in itself establishes negligence on the part of the defendant,” provided that it should be found that such negligence was the proximate cause of the injury, etc.

On this appeal the point is raised that the trial court should have construed the ordinance in question and should have advised the jury that the expression “upon dr along” meant “upon and along” so that the inhibition of the ordinance should not go to a driving upon a sidewalk alone such as to prevent a crossing of a sidewalk into a garage or vacant lot. Manifestly the word “or” in the ordinance is incorrectly used for “and” and the clear' purpose of the ordinance is the prohibition of driving “upon and along” a sidewalk rather than a driving across a sidewalk for purposes of ingress or egress to or from private property. But aside from the fact that the defendant did not request an instruction upon these lines we are unable to perceive how the failure to so instruct has any bearing upon the case. It was the plaintiff’s case that the two right wheels proceeded both upon and along this particular portion of the sidewalk. There was no contention by either party that the automobile was being driven across a sidewalk and there is no contention that the ordinance relates only to a case where all four wheels are upon and along