Olsen v. Levy

KERRIGAN, J.

This action was brought to recover damages for injuries received by plaintiff, caused by the alleged negligence and carelessness of the defendant while operating an automobile owned by him. In accordance with the verdict of the jury a judgment for $300 was entered in favor of the plaintiff. The appeal is from an order denying defendant’s motion for a new trial.

[488]

Appellant (defendant) contends that the respondent was guilty of contributory negligence which was the proximate cause of the accident, the alleged negligence consisting in riding his bicycle on Market street, San Francisco, while the street was greatly obstructed by debris. The record shows that at the time of the accident the north and south sides of Market street, between East and Third streets, were impassable by reason of being covered with debris from buildings destroyed by the fire of April 18, 1906; that the roadway of Market street available for use was then greatly narrowed. The respondent testified as follows: “On account of the number of people, cars and teams on the street it was impossible for me to ride on my bicycle, so I was compelled to walk up. I continued to walk up the north side of the street to about twenty feet from where the accident happened. I saw the road clear, got on my bicycle and continued going up Market street, when all of a sudden an automobile came out of the track from behind the car, and ran into me. . . . The crowd was so great that it was impossible for me to ride on my bicycle up Market street until about twenty feet from where the accident happened. I then got on the bicycle because I thought I could safely do so. It was not possible to travel fast on the street on account of the vast concourse of people and the cars.” In this view of the record we are at a loss to see that respondent has been guilty of any conduct which would preclude him from recovering in this action.

Appellant next contends that the court erroneously refused to strike out the answer of P. A. Bay, a witness called by respondent, as to the rate of speed the automobile operated by appellant was going just prior to the accident. The following proceedings were had with reference to that testimony:

“Q. What first attracted your attention to the defendant? A. He was going down Market street at a lively gait. I knew it was a reckless way. I saw several make lively escapes, two young fellows particularly.