Souza v. Underwriters' Fire Patrol

STURTEVANT, J.

The plaintiff sued to recover a judgment for damages for personal injury. At the end of the plaintiff’s case the defendant moved for a, nonsuit. The motion was granted. The plaintiff made a motion for a new trial. That motion was denied and the plaintiff has appealed. In his first -point the plaintiff contends that the motion for a nonsuit was not sufficiently specific. The motion was based on the ground that it had not been shown by the evidence in the case that the defendant was guilty of any carelessness or negligence in the operation of its truck proximately causing this accident. The plaintiff quotes 9 California Jurisprudence, page 949, as follows: “It is, therefore, settled law that a motion for a nonsuit must point the attention of the court and counsel to the precise grounds upon which it is made.” We think that the motion was as specific as the pleadings and the facts called for.

On the 15th of May, 1926, the plaintiff was a passenger on an outbound McAllister Street car. He and his family, were seated on a bench which was inside of a movable metallic gate which at that time was closed. The bench was on the south side of the front end of the street-car. When the street-car reached Buchanan Street it stopped to let off some passengers. While it stood there one of the trucks of the defendant came north on Buchanan Street attempting to go to a fire for which the fourth call had been put in. It was the intention of the driver of the truck to turn to his right when he reached McAllister Street. Just as the truck was in the intersection of Buchanan and Mc-Allister Streets and attempting to make the turn No. 14 engine operated by the fire department of the city and county of San Francisco left the fire-house located in the middle of the block on the south side of McAllister and between Buchanan and Webster Streets. As that engine left the fire-house Lieutenant Isbel testified that he sounded the

[15]

siren and kept sounding it. When he got outside of the fire-house he turned to his right and proceeded east on McAllister. While defendant’s truck was in the act of making the above-mentioned turn engine 14 was driven between the truck and the street-car. The truck hit the engine amid-ship. The engine was forced to rub the side of the streetcar and in doing so hit the gate and the plaintiff testified that at the same time he was hit in the back. At this time the plaintiff claims that when the fire-engine sounded its siren the defendant’s truck should have immediately moved to a position as near as possible and parallel to the right-hand curb and should have remained there until the fire department apparatus had passed it. He cites and relies on section 133 of the California Vehicle Act (Stats. 1923, p. 560). Omitting irrelevant parts, that section provides: “Upon the approach of any . . . fire department vehicle, . . . upon the sounding of a signal by such . . . fire department vehicle . . . every other vehicle shall immediately be moved to a position as near as possible and parallel to the right-hand curb, and shall remain there until the . . . fire department apparatus has passed such vehicle.” It will hardly be disputed that the statute rests upon the assumption that the driver of the other vehicle shall hear the siren of the fire department apparatus. Such driver was not called and the record does not disclose any direct evidence to the effect that he did or did not hear the siren. However, the record does not show affirmatively that there were any other vehicles in the neighborhood nor that there was any noise that would in any way prevent the driver of defendant’s ‘ truck from hearing the siren if the same was sounded. There is no evidence in the record that the siren on the engine does not make a noise sufficiently loud to be heard around the corner of one block. In very short, the case rests on the presumptions or inferences that may be resorted to when a motion for nonsuit is made at the end of plaintiff’s case. The courts do not favor the motion when made at that time. In