Kerner v. Spiegl

RICHARDS, J.

This is an appeal from an order denying plaintiff’s motion for a new trial. The action was one for damages alleged to have been sustained by the plaintiff through an accident arising from the negligent operation of the defendant’s automobile. The defendant in his answer denied that the accident occurred through any negligence on the part of himself or the operator of his automobile, and alleged that the plaintiff’s injury occurred through her own negligence. The action was tried by the court sitting without a jury, and the findings and judgment of the court were in favor of the defendant upon both these issues. The plaintiff did not appeal from the judgment, but moved for a new trial upon the ground of the insufficiency of the evidence to justify the decision of the court, and also upon the ground of newly discovered evidence, and she now appeals from the order of the court denying her said motion for a new trial.

The facts of the case which form the basis of the findings and judgment of the court were briefly these: On the evening

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of December 10, 1913, the defendant in his automobile driven by his son, a driver of several years’ experience, was proceeding westerly along the northerly side of Post Street, in the city of San Francisco, at a rate of speed testified to as not exceeding ten miles an hour. The night was dark. It was raining and the roadway was slippery. As the automobile was in the act of crossing Post Street a wagon, driven by some person unknown, suddenly undertook to turn up Post Street in such a way as to require the operator of the automobile to immediately change the course of the machine and cross over near to the southerly side of Post Street in order to avoid a collision. At this moment the plaintiff and a companion going northward on the westerly side of Polk Street stepped off the curb into Post Street carrying a raised umbrella and attempting to cross said street. When discovered by the driver of the automobile, and when they in turn became aware of its proximity, the plaintiff and her companion were about three feet from the curb of Post Street and three or four feet in front of the machine. The driver made every effort to stop the machine in order to avoid "a collision, but could not do so fully, and the machine struck the plaintiff and her companion, knocking them down, bruising them both somewhat, and injuring their clothing through contact with the car and muddy street. The machine came to a standstill immediately after the impact, and no part of the automobile went over either of the ladies.