Bennichsen v. Market-Street Ry. Co.

McFARLAND, J.

This is an action to recover damages on behalf of the infant plaintiff for- personal injuries alleged to have been caused by being struck by a moving car of defendant. The verdict and judgment were for plaintiff, and defendant appeals from an order denying its motion for a new trial.

The important features of the case are these: At the time of the alleged injuries defendant was operating a double-track electric street railroad on Sansome Street in San Francisco, the street running north and south.. Defendant also was operating a similar street railroad on Broadway Street, which runs east and west, crossing Sansome Street. Plaintiff lived with her parents in a house on the southeast corner of Sansome and Broadway, where the two railroads cross each other. She had been going to school for about four years before the accident by which she was injured, and in going to and from school* doing errands, etc,, she had been in the habit almost daily of crossing said railroads. She was at the time of the accident almost nine years old—eight years, eight months, and some days. Her mother had frequently cautioned her to be careful in crossing the railroads. The plaintiff herself testified that before the accident when crossing the railroads she would look to see if there was any car coming so that she would not get hurt, and that if she saw a car coming she would wait on the sidewalk until it had passed. On the day of the accident she undertook to cross Sansome Street between Broadway and Pacific Street, which is the next street south of, and parallel with, Broadway, when the car was close at hand going north toward Broadway, and

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was struck by it, and injured. She did not look to see if the ear was coming. The evidence of defendant was to the point that she ran against the side of the car, and was thrown under it, although the jury may have been justified in finding that she was.struck by the front end of the car. Witnesses for plaintiff testified that when they saw her just before the accident she was from eight to ten feet from the car. But under any view of the evidence on this point it is clear beyond doubt that if she had been a person of mature age she would have been guilty of contributory negligence,— negligence which contributed proximately and directly to her injuries. And we need not inquire whether the jury would have been justified, under all the evidence on the point, in finding, that, on account of her age, no negligence could be attributed to her, because the case was tried on the theory, and the jury were instructed, that even though she or her parents were guilty of contributory negligence, still she was entitled to recover if, “by reason of negligence on his part, the motorman failed to avoid the accident,” and “if the defendant’s employees could have avoided the injury by the exercise of ordinary care.”