Jones v. Barion

KOFORD, P. J.

Plaintiff obtained a verdict and judgment for damages for personal injuries sustained by being

[60]

struck by defendant’s automobile. Defendant appeals. He attacks the sufficiency of the .evidence and complains of the giving of one instruction.

The evidence shows that the respondent after dark walked westerly from Second toward Third Street upon the north sidewalk of Folsom Street in San Francisco. At the northeast corner of Third and Folsom Streets a building was under course of construction. Building material obstructed the sidewalk and also a part of Folsom Street almost out to the nearest of the street-car tracks. This obstruction extended toward Second Street from Third Street a distance of from 75 to 125 feet. When respondent arrived at this obstruction, he turned out into the street and continued as if to cross the south side of Folsom Street. When he was a few feet beyond the middle of the street (according to his version) he was knocked unconscious by the appellant’s automobile. He had heard and seen nothing of appellant’s automobile before that, although he said he had looked in both directions before entering and while crossing the street. Appellant testified that he was proceeding at a moderate speed astride the northern or his most right-hand street-ear rail and saw nothing of the appellant except the flash of a shadow before the impact. He testified:

“Q. What was the condition of the weather on that night? A. Well, my machine was on the outside of the boat (he had shortly before crossed the bay on the ferry boat from Oakland) and the windshield was hazy. I had a hand wiper, I could only see, I should judge, about a few feet, just from the wiper. The right-hand side of the wiper was all hazy and the bottom of the windshield was hazy. Q. What was the condition of the weather in San Francisco? A. It was like a high fog, when you drove you would pick up a little moisture on the windshield."

Appellant also testified that his lights were lit; that his automobile had already passed the first part of the obstruction and had reached a point about 40 feet from Third Street before the right-hand part of the front of his automobile struck respondent. Both appellant and respondent testified to the effect that the atmospheric visibility was good.