Di Vita v. Martinelli

STURTEVANT, J.

The plaintiff sued to recover damages for personal injuries. At the end of the plaintiff’s case each defendant separately moved for a nonsuit; the motions were granted and from the orders of nonsuit and the judgments entered thereon the plaintiff has appealed.

[393]

On the first day of March, 1930, the plaintiff was standing on the sidewalk near the curb on the south side of a telephone pole which is located at the southeast corner of the intersection of San Bruno Avenue and Twenty-fifth Street in San Francisco. At the same time an automobile owned by Rodi Martinelli and his brother was standing in the street parallel to the curb a short distance to the south of where the plaintiff stood. Rodi Martinelli, Selma St. Louis and another young lady, had driven to that spot and stopped. Mr. Martinelli’s uncle occupied the house immediately east of where the car was parked. When the party arrived Mr. Martinelli stopped the car, and, leaving the young ladies in it, he went into the house. Afterward he came out, passed around to the left-hand side of the car out in the street, and stood there putting on his overcoat. While he was so engaged the plaintiff stood by the telephone pole. Martinelli saw him and the position he occupied. The plaintiff was resting Ms right shoulder against the pole and was facing out into the street. About the time that Mr. Martinelli started to put on his overcoat there is some evidence that he said, “Let’s go.” About that time Miss St. Louis reached to her left and turned on the ignition. Mr. Martinelli stood by the left running-board, saw her do so, and said nothing. Soon thereafter she stepped on the starter. As she did so the automobile went forward and caught and bruised the plaintiff’s right leg on the inside above the ankle.

From time to time before the date of the accident Miss St. Louis had ridden in the automobile with Mr. Martinelli and he had given her instructions regarding the operating of the automobile; but as yet she had not obtained a license.

The plaintiff testified that before the machine started forward no horn was blown. He also testified that he stood on the sidewalk looking at the machine and that he saw the machine start forward, but it did so in a jump and caught him before he could get out of the way. He did not see whether Miss St. Louis started the machine or the other girl started it.