Wagner v. United Railroads of San Francisco

KERRIGAN, J.

This is an appeal by defendant from a judgment and from an order denying its motion for a new trial. The action was brought to recover damages for personal injuries sustained by the plaintiff as the result of a collision between one of defendant’s cars and a sand-wagon driven by plaintiff.

The defendant operates a street railway on Ellis street, in San Francisco; and on the twenty-sixth day of January, 1907, at about 3 o’clock in the morning, as the plaintiff was driving a loaded sand-wagon along Mason street in a southerly direction across Ellis street, the wagon was struck just back of the front wheels by a car operated by an employee of the defendant, which ear was on the southerly track and proceeding in an easterly direction.

The theory of plaintiff’s case was that the defendant ran its car at an excessive rate of speed, to wit, at the rate of twenty-

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five miles an hour, and in so careless and negligent a manner as to strike with great violence the wagon driven by plaintiff, thereby throwing him from the seat of the wagon and injur-' ing him in the manner described in the complaint.

Defendant claims that the judgment and order should be reversed on three grounds.

1. Defendant’s first claim is that the evidence shows that the plaintiff was guilty of contributory negligence, and that therefore the court should have granted its motion, for non-suit.

Plaintiff’s evidence did not show that he drove upon the car tracks of the defendant without looking for approaching cars. On the contrary, he himself testified that he looked for and saw the car coming which subsequently collided with his

wagon;

that when he first saw it, it was a block away, and, believing that he had ample time to cross in safety, attempted to do so, but a moment later he perceived that the car was advancing at a speed of thirty or thirty-five miles an hour; that he then whipped up his horses in an endeavor as best he could to escape a collision, but without success. Under the circumstances, the reasonableness of plaintiff’s belief that he had time to cross the track in safety was a question to be considered by the jury, and since there was evidence to sustain the material allegations of plaintiff’s complaint, the motion for non-suit was therefore properly denied.