Corcoran v. Pacific Auto Stages, Inc.

STURTEVANT, J.

This is an action for personal injuries. Judgment went for the plaintiff and the defendants have appealed.

On the evening of the sixteenth day of March, 1930, the plaintiff was knocked down and suffered the injuries complained of when he was a few feet from the westerly side of the highway leading from San Mateo to San Francisco. The accident occurred in the city of San Mateo approximately ninety feet south of the southerly line of Sixteenth Avenue where the street abuts on the highway.

The appellant contends that the trial court erred in permitting the cause to be tried by a jury over the objection of the defendants’ counsel, plaintiff having waived trial by jury by failing to deposit with the clerk, within ten days prior to the date set for trial, a sum equal to the amount of one day’s jury fees. It will suffice to state that

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none of the facts supporting that contention appear on the record before us. True it is that the objection was made in the trial court, but the objection was not supported by an affidavit, the records of the trial court, or otherwise.

The defendants next assert that the verdict is contrary to law inasmuch as no proof was presented at the trial of any act of negligence on the part of the defendants or of either of them or of any fact or facts from which the jury could rightfully infer such negligence. The plaintiff testified that he had alighted from an automobile at the corner of Sixteenth Avenue and El Camino Real and that he walked directly to the west side of the last-named highway and then when he arrived there that he turned south and walked along the westerly side of the highway to the point where the accident happened. It was a dark, rainy night and he was a stranger in the neighborhood. While he was walking rapidly along the edge of the highway and shortly before he was hit a light shone from the rear on his back. He turned his head to the left and as he did so the defendants’ bus was within two feet of him. He turned his head and attempted to step to his right, but as he did so he was hit from the rear by the bus. There was evidence that at the time of the accident a Studebaker automobile was traveling parallel to the bus and on its left side and both were going south. However, the record shows affirmatively that there were no other objects in the highway and that no object at all obstructed the driver’s view ahead. • There was also evidence that at the time of the impact and for approximately one hundred feet back the defendants’ bus was being operated half off the right-hand side of the highway. In view of these facts it cannot be said that there was no evidence of negligence.