Schilling v. Hayes

SHAW, J.

Action to recover damages alleged to have been -sustained as the result of defendants’ concurrent negligence in the operation of their automobiles. The ease was

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tried without a jury by the court, which gave judgment for plaintiff, from which defendant Bristol appeals.

Appellant attacks the findings upon the ground of insufficiency of the evidence. The evidence clearly tends to show the following facts: The accident occurred at a point in Lake Shore Avenue, extending north and south, near its intersection with Santa Ynez Street, which extends east and west. A street-car was operated on Lake Shore Avenue and at the time in question plaintiff, at the usual stopping place of the cars, was standing near the west track to board an approaching south-bound car on the west track, which, at the time was distant about 150 feet. At the same time an automobile, at a speed of some thirty miles per hour, was operated by defendant Bristol in an easterly direction on Santa Ynez Street, having a grade at that point of six or seven per cent, and, reaching the intersecting street, it turned sharply to the right in a southerly direction into Lake Shore Avenue, the left front wheel of the automobile crossing the westerly rail of the street railway track near where plaintiff was standing. In order to escape collision therewith, he stepped two or three feet to the east, at winch time he was instantly struck by the ear of defendant Hayes, which, operated southerly on Lake Shore Avenue at a speed of some forty miles per hour, darted around the street-car and collided with plaintiff. There is testimony to the effect that a collision between the two automobiles, as well as between the street-car and the Bristol automobile, appeared to be inevitable. That both automobiles were, under the circumstances, being operated at a high and' excessive rate of speed, admits of little question. That plaintiff occupied a position of safety but for the negligent act of the driver of the Bristol car, would seem likewise clear. By such negligence he was forced to change his position to a point where, by reason of the negligence of the driver of the Hayes ear, it collided with him, causing the injuries complained of. The testimony of C. C. Moore, who appears to have been a wholly disinterested witness and who happened to be in the vicinity, discloses that he saw the Bristol car coming down the hill at an excessive speed and saw he could not beat the street-ear to the intersection of Lake Shore and Santa Ynez if the street-car did not slow up. He came so near to plaintiff that he was compelled to jump in