Burr v. United Railroads of S.F.

SLOSS, J.

In this action, brought to recover damages for the alleged negligent destruction by defendant of plaintiff’s automobile, the court, at the close of plaintiff’s case, granted a nonsuit. Plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

One of the grounds upon which a nonsuit was asked was “that no negligence has been shown, actionable or otherwise.” The evidence offered by plaintiff tended to show that at a point on the “Mission Road,” a street of the city and county

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of San Francisco, the defendant, a street railroad corporation, was repairing its track. The roadbed had been torn up for some distance, and there was a temporary crossing over the tracks for vehicles. On the evening of November 8, 1907, at about seven o ’clock, the plaintiff was riding northerly over the Mission Road in his automobile. The plaintiff says that it was dusk, although the time stated by him was about two hours after sunset. On coming to the place where the temporary crossing was, he attempted to cross the defendant’s tracks. One of the front wheels of his automobile struck a rail which protruded for some three inches above the surface of the ground. The rail caused the wheel to slip or “skid” sidewise and the automobile failed to get across. Plaintiff made several attempts to get his machine over the track, but each time failed, the machine facing more and more in a direction parallel with the track and toward the north. While the automobile was in this position, it was struck by one of defendant’s cars, which was traveling southerly at a rate, as plaintiff testifies, of twenty-five miles per hour. The automobile was lighted, as was defendant’s car. While the car was approaching, and when it was about a block away, the plaintiff gave “what is generally known as a railroad stop signal,” that is to say, he stood up and threw down his hands. He did not sound his horn. The engine of his automobile was in motion until the collision, and the automobile itself was moving forward or back during the entire time, except for a brief interval. The plaintiff judged that the motorman saw him “from the fact of his furious whistling.” The motorman could have stopped when he first saw the plaintiff.

On this testimony, we think the issue of negligence should have been submitted to the jury. It is elementary that a motion for nonsuit is not to be granted where there is any substantial evidence which, with the aid of all legitimate inferences favorable to the plaintiff, would support a verdict or finding that the material allegations of the complaint are true. Equally well settled is the rule that “negligence is a question of fact for the jury, even when there is no conflict in the evidence, if different conclusions upon the subject can be drawn from the evidence.”