Lagomarsino v. Market Street Ry. Co.

SEAWELL, J.

This appeal is from a judgment in the sum of $5,120.25 entered upon the verdict of a jury trying said cause against appellants and in favor of respondent on account of injuries and damages sustained by respondent as the proximate result of a collision between a heavy automobile truck owned and operated by the Shell Company of California and upon which respondent, while engaged in the course of his employment, was seated by the side of the driver of said truck, and a street-car operated by defendant

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corporation, which was in charge of appellant Harpe, the motorman.

The collision occurred at the intersection of Ninth Avenue and Clement Streets, in the city and county of San Francisco, at about the hour of 11 o’clock A. M. on November 8, 1922. It was rather a dark day and hail had fallen, but a short time before the collision occurred. The street-car was east bound on Clement Street and the truck was north bound on Ninth Avenue. The street-ear came to a stop at the Eleventh Avenue intersection, but made no other inter-street stop and at the time it reached ,the middle of the block bounded by Tenth and Ninth Avenues, where it was first observed by plaintiff, it was moving at a rate of speed variously estimated from seventeen to thirty miles an hour. It was the testimony of the plaintiff that the motorman was not looking ahead of the car, but was engaged in conversing with a person standing by his side. The driver of the truck, upon observing the peril of the situation at a time when the street-car was some distance from the point where the truck was crossing Clement Street, blew a shrill whistle to engage the motorman’s attention, but the motorman failed to arrest the momentum of said street-car and it struck the truck with violent force a few feet past its mid-section, throwing both occupants of the truck to the ground with such force that respondent suffered concussion of the brain, sustained a cranial fracture four inches in length on the right side of the head and received a severe cut on the left ear. He was incapacitated for several months and suffered from temporary deafness, dizziness, and loss of general strength for something like eight months. He had not at the time of the trial regained his former vigor and, while given lighter work by his employer at the same salary which he formerly received, he was not fully restored to his former robust health. We have given consideration to the objection made to the amount of damages awarded, but we are not able to say as a matter of law that the verdict in that respect is the result of passion or prejudice. There is some evidence that respondent has suffered from recurrent headaches, dizziness, and other ailments since his injuries which did not distress him before the collision. Under this state of the record we cannot disturb the jury’s implied findings.