Singer v. Bruns

RICHARDS, J.

This is an appeal on behalf of the plaintiff from a judgment in favor of defendants J. H. Bruns and Elwyn Bruns in an action brought by the plaintiff to recover damages for personal injuries sustained in a collision between a street-car of the defendant San Franeisco-Oakland Terminal Railways, upon which the plaintiff was" a passenger, and an auto-truck being driven by the defendant Elwyn Bruns. After the commencement of the action, but before the trial thereof, it was upon the plaintiff’s motion dismissed as to the defendant San Franeiseo

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Oakland Terminal Railways, but was continued and tried as against the defendants Bruns before the court sitting without a jury. Upon the submission of the cause the trial court made its findings of fact and conclusions of law, wherein and whereby it found that the collision occurred by reason of the careless and negligent manner in which the street-ear was operated by the employees of the San Francisco-Oakland Terminal Railways; and that it was untrue that the defendants Bruns, or either of them, were careless or negligent in the operation of their said auto-truck, but, on the contrary, it was trae that the said defendants Bruns were operating and driving the same in a careful and" prudent manner at the time of said collision. As a conclusion of law from the foregoing findings of fact the court found that the plaintiff was not entitled to recover as against the defendants Brans and gave its judgment ac-i cordingly in favor of said defendants. The plaintiff prose-¡ cutes this appeal from said judgment.

The evidence with respect to the circumstances under which the collision in question occurred is quite conflicting and it would serve no useful purpose to restate such evi-, denee with a view merely to disclosing the particulars in" which such conflict exists. It will be sufficient to state that there was substantial evidence presented to the trial court showing that the collision in question occurred on" the sixth day of March, 1920, at the intersection of Fallon and Eighth Streets, in the city of Oakland. The San Francisco Terminal Railways, a corporation, was at the time operating an east-bound street-car on and along the southerly track of its system on Eighth Street, and the plaintiff was a passenger upon said car. The defendants Bruns, Elwyn Bruns driving, were operating an automobile truck on Fallon Street, going in a northerly direction at or near the point of said intersection. The speed of said truck was by a governor limited to thirteen miles an hour. It was heavily laden and was proceeding at the time at about the speed of seven miles an hour. As the truck approached Eighth Street and as the car going easterly on Eighth Street drew near the intersection of the two streets, a lighter truck, traveling faster, came into view on Fallon Street, moving southerly toward Eighth as though to cross the street in front of the car. The motorman on the car was watching