Anderson v. Market Street Railway Co.

SPENCE, J.

In this action to recover for personal injuries judgment upon the verdict was entered in favor of plaintiff from which judgment defendant appeals.

Appellant urges several grounds for a reversal, the main contentions being: First, that there is no evidence of negligence on the part of appellant; and second, that even if it can be said that- there is testimony showing negligence on appellant’s part, the evidence shows that respondent was guilty of contributory negligence as a matter of law. In our opinion the latter contention must be sustained and we believe that a discussion of the remaining points raised by appellant would serve no useful purpose.

The accident occurred near the intersection of Mission and Avalon Streets in San Francisco at about 7:20 P. M. on the evening of September 14, 1929. At that point Mission- Street runs -in a general northerly and southerly direction. Respondent, a woman sixty-eight years of age, was struck by a north-bound street-car while she was running across the pedestrian lane from the west to the east side of said street. It does not appear that there was any other vehicle or street-car in the immediate vicinity and respondent’s view of the street-car was unobstructed. Respondent had come into Mission Street on the west side at Theresa Street, a short distance north of Avalon Street. The north-bound street-car, according to her testimony, was then “far away in the other block”. She was intending to board this car at the safety zone at the east side of Mission Street near Avalon Street and she proceeded in a southerly direction to Avalon Street before starting to cross. She testified that she had been taking the car frequently at this point over a period of several years. She stated that it was the custom

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of the cars to stop there when people were waiting at the safety zone, “but not otherwise”. The nncontradicted testimony showed that this was not a ‘ ‘ regular stop ’ ’ and that cars stopped there only when passengers were waiting at the safety zone.

Respondent was the only witness called on her behalf to testify concerning the circumstances immediately surrounding the accident and the testimony offered by appellant’s witnesses with respect thereto was not helpful to her. ■ Examining her testimony with respect to. the movement of the street-car, we find that she observed it several times after entering upon Mission Street at Theresa Street and that it was at all times going fast. Using some of the expressions found in the record, we find that it was “going fast” when she first saw it “far away in the other block”; that later she observed it going just “as fast”; that “it hadn’t slowed down any”; that thereafter when the car was at the south end of the safety zone it was “coming just as fast as it had been on the other occasions” when she saw it; that the car did not “slow down at any time”, but “came fast the whole time”. Referring to her own conduct, she testified that she was running because she was in a great hurry. Again employing some of the precise words used, we find the following: “Q. Did you try to run across the track in front of this car? A. Yes, I was in a great hurry. . . . Q. Yes, but as far as you went, you were running, weren’t you? A. Yes, I was in a hurry to get over, but I didn’t get over. The Court: Well, he wants to know if- she was running; this is his question. A. I was running. ’ ’ The following questions and answers of respondent show the approximate relative positions of respondent and the car, the safety zone referred to being fifty-four feet in length • and being located just south of the lane on which respondent was crossing: “Q. When the street car was at the other end of the safety zone, did you notice how fast it was coming? A. Very fast. Q. And you saw when it was at the other end of the safety zone and before you got upon the first track that it was coming very fast, did you? A. Yes. Q. And seeing it at that point and coming very fast, did you try to run across the track in front of it? The witness: Yes, I was in a hurry. ... Q. At the time you started to run across the tracks, the rails on which