Riney v. Pacific Electric Railway Co.

•SLOANE, J.

This is an appeal by plaintiff from a judgment of nonsuit in defendant’s favor. The action is for damages resulting to plaintiff from being run over by one of defendant’s electric ears. On the trial, at the conclusion of plaintiff’s ease, the court gave judgment for defendant on the ground that plaintiff’s evidence affirmatively established contributory negligence.

The injury occurred on defendant’s electric railway in the city of Venice. Trolley Way, the street occupied by

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the railway, is, at the place of the accident, intersected by Horizon' Avenue. At this intersection plaintiff, who was walking in a northerly direction upon a sidewalk along the east side of Trolley Way, left the walk to cross Trolley Way, with its double-track railway. The width of the street at this point, from curb to curb of the sidewalk, seems to be sixty feet. The first rail of the first car track is 14.3 feet from the curb. The track itself is 4.71 feet wide, and the space between the two tracks is twenty-one feet. It was upon the second track that plaintiff was injured. According to his own testimony, the only time he looked or listened for an approaching car was when he left the sidewalk to cross the street. Although there was an open view for five hundred feet, and his hearing was good, he says he neither saw nor heard any indication of an approaching ear. Prom that point, until he was struck by a west-bound car on the second track, the evidence discloses that he paid absolutely no further heed to his surroundings, but proceeded leisurely across the street, apparently engrossed in introspective reflections. The distance he traveled was over forty feet, and he then entered upon the second track without looking up or even listening.'. At this time there was a car speeding down toward him at what the witnesses estimate at a rate of thirty or forty miles per hour, upon an open, unpaved track, with a noise which one of plaintiff’s witnesses' heard half a block away, and which, as a matter of common knowledge, must have been sufficient, at such a speed and on such a track, to give warning of its approach at a considerable distance. The testimony is to the effect that no gong or whistle was sounded until the car was within from fifteen to thirty feet of plaintiff.

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There is no question that the evidence shows negligence on the part of defendant; but it is equally evident that plaintiff was guilty of contributory negligence. Considering the distance plaintiff had to travel from the curb, where he took his only observation of the street, to the second track, where he was struck, the most obvious ^dictates of common prudence required him to look and listen again before entering on this second track, which was separated from the first, not by the usual distance of five or six feet, but by a space of twenty-one feet. It is evident that plaintiff could have avoided this injury by the most