Depons v. Ariss

KERRIGAN, J.,

pro

tem.

—This is an action for damages for the death of one Jean B. Depons. The action was

[486]

brought by the administrator of the estate of deceased, and the complaint alleges that the death of Depons was caused by the negligent operation of an automobile truck, which was driven at the time of the ‘accident by defendant Clark, an employee of the other defendants, Ariss and Knapp. The case was tried without a jury and the court rendered judgment in favor of defendants. Findings were' waived, ■but it appears from the record that the trial court’s decision was based upon the fact that the plaintiff had failed to establish negligence on the part of defendants. It was stipulated that in the event of a reversal that the trial court should be directed to enter a judgment for plaintiff in the sum of two thousand eight hundred dollars. To prove her case plaintiff introduced only two witnesses at the trial. The testimony of one of these was confined to the surroundings and the condition of the street where the accident occurred. The other witness testified to the circumstances of the accident. The facts, therefore, are practically without conflict and, in brief, are as follows: Deceased was employed and interested in a laundry, situated on the east side of San Pablo Avenue, between Fifty-ninth and Sixtieth Streets, in the city of Oakland.

San Pablo runs in a general northerly and southerly direction. A street railway company occupies tracks in the center thereof. On the day of the accident these tracks were in the course of repairs, and the westerly portion of the street was, in consequence, obstructed and unsuitable for travel. For this reason, vehicles going in both directions were using the easterly side. The width of the roadway on this portion of the thoroughfare, from the curb to the first car rail,

is

about twenty-four feet. Of this, two feet adjoining the car tracks was excavated and had been filled with fresh cement and was not suitable for travel, leaving about twenty-two feet of this easterly portion of the street open for traffic.

On the day of the accident a Ford machine, facing south, was parked along the curb in front of the laundry. Deceased was bending over in front of this machine, apparently fixing or cranking it, his back being turned to the south. While in this position a heavy truck, some eight feet wide and loaded with crushed gravel, operated by defendant Clark, was proceeding northerly along the easterly