Ginochio v. City & County of San Francisco

STURTEVANT, J.

Angelo Ginochio was injured while attempting to board one of the street-cars operated by the defendant. Later he died of the injury so sustained. The plaintiffs sued the defendant for damages, judgment went for the plaintiffs, and the defendant has appealed.

For some time prior to his death the decedent had been residing near the corner of. Jones and Vallejo Streets, in San Francisco. Early in the afternoon on Sunday, the eighteenth day of April, 1920, he was seen on and was seen to get off from a south-bound Van Ness Avenue ear, operated by the defendant, and to take a position at a stopping place on the easterly side of the track known as the Van Ness-Eleventh Street line. Whether the decedent was on the sidewalk or was out in the street nearer the car track is not certain. Some of the witnesses placed him in one of those spots and other witnesses placed him in the other. The decedent and other persons, five or six in number, waited in that locality for several minutes, some of the witnesses stating that they had waited as long as ten minutes. The decedent stood at the extreme eastern side of the group, some of the others standing farther to the west and in the immediate vicinity of the monument which stands at the intersection of Van Ness and Market. Between the stopping place first mentioned and the monument the tracks of the Van Ness line cross over Market Street in a southeasterly direction, making an acute angle

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with the north line of Market Street. When the persons above mentioned were in the positions we have described a west-bound car came up Market Street. As the car approached the intersecting tracks it slowed down, but did not stop. The witness Kelly testified that the car slowed down to two miles an hour, and after it had nearly crossed the intersecting tracks that it started up suddenly. He stated that the decedent approached the car, put one foot on the car, took a hold of it, and immediately fell. He says that the car slowed down at the first stopping place but that it did not stop at all. Mr. King, the only other eye-witness called by the plaintiff, testified that the decedent attempted to get on the ear when it was slowing down, at the same time the car fed up and the decedent was thrown to the pavement. The defendant called five witnesses, including the conductor and the motorman. All five of those witnesses stated that the car did not stop until it reached a place in front of the monument. All five were of the opinion that the car approached the intersecting street-car tracks at a speed, variously estimated, at from four to ten miles an hour, and crossed over those tracts at a greater speed than testified to by the plaintiff’s witnesses. The motorman testified that he did not see the decedent, and did not know of the accident until his car came to a stop. The other witnesses testified that they saw the decedent and that he either jumped for, ran for, or ran after the moving car. The conductor testified that as the ear approached the intersecting tracks he saw the group apparently waiting to board the car; that, as his platform was opposite the group, he motioned to the people to go to the stopping place at the monument; that a little later he saw the decedent run up from the rear, attempt to board the car, fail in the attempt, and fall to the ground. He says he gave a signal of three bells to stop, but the car did not stop until it reached the monument. It was the theory of the plaintiffs that the decedent was a passenger by reason of (1) having become such on the Van Ness Avenue car and being transferred to a west-bound car; and (2) although the decedent had not entered the west-bound car that the surrounding circumstances were such as to show an intent on his part to become a passenger and an acceptance of him