New York Lubricating Oil Co. v. United Railroads of San Francisco

LENNON, J.

The plaintiff in this action recovered judgment against the defendant for damages to its auto-truck resulting from a collision between the truck, operated by an agent of the .plaintiff, and a suburban electric car which was operated by the defendant upon a private right of way running parallel with Sloat Boulevard, in the city and county of San Francisco. The case was tried without a jury. The defense of the defendant rested in part upon the plea of contributory negligence. The trial court found, among other things, that the defendant was guilty of negligence which proximately contributed to the damage complained of and that the plaintiff was free from contributory negligence.

It seems to be conceded, and properly so, that the motorman was guilty of negligence in his operation of the streetcar prior to the time of the collision. It is contended, however, in support of the appeal from the judgment rendered in favor of the plaintiff, that the evidence shows affirmatively, and without contradiction, that the driver of the truck was, as a matter of law, likewise guilty of negligence which proximately contributed to the accident.

This contention, we think, must be sustained.

The evidence adduced upon the entire case tends to show the following facts: The collision occurred about 10 o’clock in the morning of a clear day in an outlying district of San Francisco. The crossing at which the accident happened was not a regular stop for cars. There was a sign overhead, “Cars Stop Here,” but cars stopped at that point only on signal. On the north side of the car tracks was an aviation field and on the south side was practically open country. The car prior to and at the time of the collision was moving toward the crossing at a speed of from thirty to thirty-five miles an hour. Until the car approached within fifty feet of the crossing the motorman did not give

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his entire attention to the track ahead of him. When the motorman ultimately discovered that a collision between the car and the truck was imminent and inevitable he jumped back into the car, and after it had proceeded three or four hundred feet beyond the point of collision, went forward and stopped the car.

The evidence is uncontradicted to the effect that the truck was approaching the crossing at the rate of five miles per hour and that the driver of the truck, some little time prior to the collision, looked and saw the ear approaching the crossing, but continued driving the truck on in its course at the same rate of speed in an attempt to make the crossing. The evidence is also uncontradicted to the effect that going at the rate of speed of five miles per hour the truck could have been stopped within a distance of three feet; that the driver of the truck had, at all times, as he approached within forty feet of the railroad crossing, an unobstructed view of the tracks for a distance of seven hundred feet; that from Nineteenth Avenue, which is approximately one thousand feet east of the point of collision, there is a descending grade of two and three-fourths per cent on the defendant’s private right of way, and down this grade the electric car was coasting; that the driver first saw the car approaching when he was forty feet distant from the track and that at that time the car was seven hundred feet away; that he watched the approach of the car from that time until he reached a point twenty-five feet from the track, at which time the car was five hundred feet away, and that he made no attempt to slow up, stop or accelerate the speed of the truck. It is also an uncontradicted fact in the case that the driver of the truck did not at any time prior to the collision note or attempt to observe the speed at which the car was approaching the crossing.