Fotos v. Bartcher

[485]

STURTEVANT, J.

The plaintiff was awarded a judg ment in the trial court for damages sustained, and both defendants have appealed under section 953a of the Code of Civil Procedure.

During the evening of the 17th of August, 1922, many persons were guests on board a vessel anchored at the Hyde Street dock, San Francisco. At about midnight some of the guests started for their respective homes. The defendant A. H. Bartcher had an automobile of the roadster type and invited his party to be seated in the automobile. The plaintiff Clara Fotos thereafter took a position on the running-board of the automobile. Whether she did so with the consent of the operator or in direct opposition to his protest the evidence is conflicting. Loaded as above stated the automobile proceeded toward Market and Mason Streets. When it reached the intersection of those streets a collision occurred between the automobile and a west-bound Market Street car.

At the time of the collision the automobile was passing from Mason Street across Market Street. The plaintiff was on the right-hand side of the automobile and on the opposite side from the impact with the street-ear. The striking of the two vehicles was of such a nature that the street-car was not injured nor any of the passengers thereon. The automobile was slightly injured as to one of the fenders and the running-board at the point of contact with the street-car. But those riding inside of the automobile were not. injured. However, the plaintiff, being on the opposite side of the automobile, was thrown on the pavement and at least some of her clothing was caught under the wheels of the automobile at the time that both vehicles had come to a standstill.

The plaintiff sued A. H. Bartcher as the operator of the automobile and the Market Street Railway Company as the operator of the street-car. In its answer the Market Street Railway Company denied any negligence on its part or on the part of its agents; and as an affirmative defense it pleaded the contributory negligence of the plaintiff. The defendant Bartcher denied negligence on his part and affirmatively pleaded negligence on the part of the Market Street Railway Company and contributory negligence on the part of the

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