Medlin v. Spazier

[244]

SHAW, J.

This is an action to recover damages for personal injuries alleged to have been sustained by reason of defendant’s negligence in operating an automobile which struck plaintiff as she alighted from a street-car. Defendant answered, denying the alleged negligence on his part, and as a separate defense alleged that plaintiff was guilty of contributory negligence.

The case was tried by a jury the verdict of which was in favor of plaintiff, in accordance with which judgment was entered in her favor. Defendant prosecutes this appeal from the judgment and from an order denying his motion for a new trial.

About 2 o’clock in the afternoon, plaintiff was a passenger on a street-car traveling north on Spring Street in Los Angeles. At the intersection of Sixth Street, where the car stopped, she with others alighted from the rear exit of the car on the east side of the street, intending, to cross the driveway to the sidewalk, at which time she collided with an auto operated by defendant traveling north on said east side of the street, was knocked down and sustained the injuries upon which the claim for damages is based.

There was evidence tending to prove that defendant in operating the auto gave no warning of his approach, and violated the city ordinance in that, while attempting to pass the street-car, which had stopped for the purpose of taking on and letting off passengers, he neglected to keep his vehicle at least four feet from the lowest step of the car.

Notwithstanding such showing of negligence on the part of defendant, appellant claims that the evidence as a matter of law shows that the injury to plaintiff was due to her own negligence, for the reason that she did not look down the street in the direction of the approaching auto when she got off the car. This contention is without merit. Negligence is a comparative term, and hence the degree of care which in one case would constitute negligence might in another be deemed the exercise of more than prudence. Of necessity the question presented is nearly always one of fact for the jury to determine from the circumstances surrounding the case.

(King

v.