Gonnermann v. Roberts

YORK, J.

Action to recover damages for injuries resulting from negligence of defendant in operating an automobile.

Appellant’s statement of the matter involved in this appeal is: “The propositions involved on this appeal arise solely on the court’s refusal to grant defendant’s requested instruction No. 1 for a directed verdict in favor of the defendant.”

According to the evidence, the plaintiff stepped from the street-car into the street where there was sufficient room for the automobile driven by the defendant to have passed her without even going close either to her or to the cement curb on the near side of the street. In other words, if he had driven his ear halfway between the ear and the curb, there was sufficient room for him to pass without coming in contact with the plaintiff, or even proximately close to plaintiff. Therefore, the doctrine of “last clear chance” certainly cannot apply to the facts involved in this matter. The authorities cited by appellant do not cover the facts involved herein. As we view it, the question is merely whether the defendant, who if he had been looking would certainly have seen the plaintiff, could, in the exercise of ordinary care, have avoided striking her, and whether as she stepped from the car to the street she should have anticipated that he would have passed closer to the car than to the curb or close enough to strike her.

We can see no element of contributory negligence in the way that she alighted from the car. She stepped from the car to the street, but did not take another step forward. Under the circumstances shown, she had a right to assume that the automobile driven by the defendant would clear the car at least six feet, as was required by the Motor Vehicle Act of 1915, section 20, subsection (o), as amended (Stats. 1919, p. 217), as follows: “In passing any railroad, interurban or street car while passengers are alighting from or boarding the same, vehicles shall be operated or driven on the right-hand side of such cars and at a rate of speed not exceeding ten miles an hour and no portion thereof or of any

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load thereon shall come -within six feet of the running board or steps of such cars, and shall at all times be operated with due care and caution so thát the safety of such passengers shall be assured: ...” (See, also, present California Vehicle Act, sec. 134 [Stats. 1923, p. 560].)