Baillargeon v. Myers

CONREY, P J.

The plaintiff appeals from a judgment rendered pursuant to an order granting defendant’s motion for a nonsuit.

The plaintiff, a boy twelve years old, brought this action to recover damages for personal injuries received in a collision which occurred between an automobile of the defendant and a bicycle on which the plaintiff was riding. At the conclusion of the evidence received on behalf of the plaintiff, the defendant moved for a nonsuit on the following grounds:

1. That the plaintiff was guilty of contributory negligence in coming down Clay Street in the city of Los Angeles from the crest of Clay Street to its intersection with Fourth Street, a distance of approximately one hundred and fifty yards, in the manner and under the circumstances shown by the evidence ;

2. That there is no testimony indicating that the defendant was guilty of any negligence;

3. That if the plaintiff was not guilty of contributory negligence, then the same evidence necessarily shows that the accident was unavoidable and without fault of either party.

On June 26, 1911, when this accident occurred, there was in force an ordinance of the city of Los Angeles requiring that “every person riding, driving, propelling, or in charge of any vehicle, . . . upon any street within the city of Los Angeles, . . . shall travel on the right-hand side of such street and as near the right-hand curb thereof as possible. ’ ’ Violation of any of the provisions of this ordinance was declared to be a misdemeanor. At the time of the accident in question the defendant’s automobile was traveling westerly on Fourth Street and was entirely on the south side of the street, which was the left-hand side as the automobile was moving. The plaintiff was riding a bicycle which was equipped with a coaster-brake and was traveling southerly on Clay Street toward the intersection of Fourth. During the last one hun

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dred and fifty yards of Ms passage over Clay Street he was going down hill on a grade of approximately fourteen per cent. From curb to curb the width of Fourth Street in that block is forty feet and the width of Clay Street is twenty feet.