Heaney v. Madden

STURTEVANT, J.

Plaintiff commenced an action against the defendants to recover damages for the death of her husband alleged to have been caused by the negligent operation of an automobile while operated by one of the servants of the defendants. The jury brought in a verdict in favor of the defendants, and the plaintiff has appealed under section 953a, Code of Civil Procedure.

On the seventeenth day of August, 1921, John F. Heaney, the deceased, alighted from the rear end of a Valencia street-car near the southerly line of Eighteenth Street in San Francisco. While passing from the street-car to the sidewalk a collision occurred between him and an automobile being operated by the servant of the defendants. On the trial of the ease it was the theory of the plaintiff that the defendants’ automobile was not operated with due care, and, secondly, that it was being operated within six feet from the lowest step of the street-car on the right-hand side thereof. On the other hand, it was the theory of the defendants that their automobile was being operated in a careful manner, at a low speed, and in a zone outside of the six-foot space above mentioned. When the plaintiff opened her case her attorney made an opening statement delineating her theory. When the defendants opened their case their attorney made an opening statement delineating their theory. Each party thereafter introduced evidence and after ¡the arguments of counsel the court instructed the jury.

At this point it is proper to state that the evidence offered by the plaintiff consisted of an attempt to prove that the decedent was struck by defendants’ automobile while the decedent was yet within the six-foot zone above mentioned. On the other hand, the evidence offered by the defendants consisted of evidence to the effect that the automobile of the defendants did not at any time approach inside of the six-foot zone, but, according to the testimony of some of the witnesses, it was eight feet away from the side of the streetcar.

In giving its instructions the trial court read to the jury sections 2 and 18 of Ordinance 1857 (N. S.). Those two sections are respectively as follows:

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“Sec. 2. Every person riding, driving, propelling or in charge of any vehicle upon any of the streets, shall ride, drive or propel such vehicle upon such streets in a careful manner and with due regard to the safety and convenience of pedestrians and other vehicles upon such streets.”