Hall v. City & County of San Francisco

SHAW, C. J.

These two eases were consolidated and tried together in the superior court. They were transferred to the district court of appeal and an opinion was rendered by that court affirming the judgment. The facts and the question in issue were correctly stated in that opinion as follows:

“The plaintiffs were injured in a collision between the automobile in which they were riding and a street-car which was being operated by an agent of the defendant and they sued the defendant to recover damages. The judgment went for the plaintiffs and the defendant has appealed. In its briefs the defendant earnestly contends that the trial court committed a reversible error in refusing to give an instruction tendered by the defendant. It appears, without contradiction, that the accident occurred about 8:30 P. M. on the evening of the thirty-first day of May, 1920. The plaintiffs were riding in an automobile which was in the act of passing from south to north over Octavia Street, in San Francisco. The automobile was being driven by a young man who was one of the escorts of the plaintiffs. At the same time one of the defendant’s street-cars was in the act of passing from east to west over Geary Street. In the intersecting space covered by both Octavia and Geary Streets the collision occurred. As addressed to these facts the defendant tendered, and asked the trial court to give, an instruction worded as follows:

“ ‘You are instructed that as a street-ear cannot go upon the street except upon its rails, it has the better right to that space to which others must yield when necessary. It was the duty of the driver of the automobile mentioned in the complaint upon approaching the crossing" of Geary Street

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to give way to the car of the defendant, which was about to pass at the same time, if necessary in order to avoid a collision. In other words, the defendant’s street-car has the prior right of way at the intersection of Geary and Octavia Streets, and if the said defendant’s car was about to cross Octavia Street and was seen by the driver of said automobile to be about to cross Octavia Street, it was the duty of the driver of said automobile to yield the right of way to the car of the said defendant, and if a collision occurred between the said street-ear and said automobile by reason of the driver of the said, automobile attempting to negligently and carelessly cross in front of said street-car, and the said defendant, its agents and servants are not guilty of any negligence in the operation of said street-car, then your verdict must be for the defendant.’ ”