Irwin v. Golden State Auto Tour Corp.

RICHARDS, J., pro tem.

T

his is an appeal from a judgment and order denying a motion for a new trial in an action for damages for personal injuries. Concerning the facts of the case there is, with one exception, no material dispute. The accident in which the plaintiff suffered his injuries occurred on the evening of February 18, 1914, on North Broadway Street near Pritchard Street, in the city of Los Angeles. Plaintiff’s version of it is substantially adopted for the purpose of this appeal: He testified that about 5 o’clock on the evening of the above date he had taken a car on North Broadway and Eighteenth Avenue, and ridden out North Broadway to Pritchard Street, where he got off the car and went across the street to a butcher-shop to get some meat. As he went into the butcher-shop he met Mr. Kelley, whose truck was standing in front of the shop, and who asked him if he wanted a ride home. (Mr. Kelley lived in his neighborhood.)

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The plaintiff answered yes, and went on into the shop to get his meat, Mr. Kelley in the meantime going elsewhere on an errand. Coming out of the shop the plaintiff walked to the curb at the rear end of Kelley’s truck, which it is stipulated was fourteen feet long and five feet wide. It was backed up, the right-hand rear wheel being against the curb and the right-hand front wheel a distance from the curb, stated by the plaintiff to have been not over three feet, but variously estimated by the different witnesses. It is upon this point, in fact, that the main dispute between the parties arose, the witnesses for the defendant asserting that the front end of Kelley’s truck was at such a distance from the curb out in the street as to constitute a violation of the ordinance of the city in respect to the positions of vehicles with relation to the curb. However that may be, the plaintiff states that he walked to the curb and looked down the street, when he saw a touring car approaching and being at the time about 150 feet away, and out in the street next to the car track. The street was fairly lighted, though it was raining at the time and the plaintiff had his umbrella up. The front and rear lights on Kelley’s truck were lighted. The plaintiff stepped off the curb, walked around the rear end of Kelley’s truck toward the front, put his right foot on the foot-board, laid his meat on the seat, lowered his umbrella, and was about to step up into the truck, his face being toward it and his back in the direction of the approaching touring car. While in this position he was struck by the touring ear, which passed over his leg, causing the injuries for which he sues. The touring ear, prior to its impact Upon the plaintiff, had been climbing a somewhat steep grade from the lower street, going slowly and making sufficient noise to be heard by the plaintiff as he went around the truck to board it. Plaintiff, in this respect, states that he heard the noise of the approaching car but that no other warning was sounded prior to the collision. It was between twenty-five and thirty feet from the nearest track to the curb on that side of the street, and as the plaintiff first observed the touring car it was approaching out in the street near the track, and following a line of- approach which would have taken it safely by the head of Kelley’s truck, and safely past the point where the plaintiff was about to board it, with space to spare. Upon a showing of these facts the plaintiff recovered a verdict and judgment for the sum of two thou