Campbell v. Los Angeles Traction Co.

McFARLAND, J.

This action was brought by plaintiffe,who are husband and wife, to recover damages for alleged injuries to the person of the wife. The verdict and judgment were for plaintiffs in the court below. Defendant appeals-from an order denying its motion for a new trial.

Appellant contends for a reversal on the grounds that, upon the evidence, plaintiffs were, as a matter of law, guilty of contributory negligence which precludes a recovery; but this contention cannot be maintained. Appellant was at the time mentioned in the complaint operating an electric street railroad in the city of Los Angeles on a street in that city called Third Street, which was a public highway, and upon which it had two tracks running easterly and westerly. On the twenty-seventh day of October, 1898, plaintiffs were riding in a two-horse wagon on said Third Street, when their wagon was struck and overturned by a moving car of appellant and the plaintiff Addie injured. A short time before the collision the respondents had been driving easterly along the northerly side of the street close to the southerly track, but had turned to the south to cross the latter track, and were upon and nearly across it when appellant’s car, coming along said southerly track from the west, struck the rear part of the wagon and threw respondents out, and thus injured the wife. The jury had the right, upon the evidence, to find that appellant was guilty of negligence in running the car at the time of the collision at a dangerous and unlawful rate of speed; but appellant contends that respondents were also guilty of contributory negligence in attempting to cross the southerly track in front of an approaching car, and that this must be taken to be so, under the evidence, as a matter of law. Of course, in a case like this there may be undisputed facts from which the legal conclusion of contributory negligence necessarily follows; and this may be so when the collision happens-, on a street railroad. But, as has been frequently held by this court, the same

character

of care is not demanded of one crossing a street railroad where cars are frequently passing at a slow rate of speed and can be easily controlled as is.

[567]

demanded of one crossing an ordinary steam railroad running through the country, on which heavy trains difficult to control go at stated times with great speed. With respect to a street railroad, the mere fact that a person attempts to cross it when a ear is seen to be approaching does not of 6 itself constitute contributory negligence. Of course, one in close proximity to an approaching street-car might walk or drive in front of it so suddenly as to clearly be guilty of contributory negligence; but ordinarily, whether or not he was negligent in attempting to cross, under the circumstances of the case, is a question for the jury. And this was so, we think, in the ease at bar. The respondents were only two or three feet from the southerly track when they turned to cross it. Their horses were going at a trot, and they could have crossed in a few moments. The respondent Henry, who was driving, testified that upon turning he looked back and saw the ear at a point about 450 feet distant; that he thought he “had plenty of time” to cross, and that his team was “still trotting when I crossed the track,” and he did not check them up; that afterward, when his wife told him to hurry up or they would be caught, he whipped his team. Appellant’s contention that, owing to certain other evidence, the jury should not have believed the witness as to the distance of the ear when he turned to cross cannot be maintained. The evidence on this point is clearly conflicting. Our conclusion on this point, therefore, is that, upon the evidence, the contributory negligence alleged does not result as a matter of law, but that whether respondents, under the circumstances, were guilty of such negligence was a question for the jury, and that their finding on that issue cannot be here disturbed.