Loftus v. Pacific Electric Ry. Co.

SLOSS, J.

This is an action to recover damages for per-

sonal injuries sustained through the alleged negligence of defendant. The plaintiff was driving an automobile which collided with one of defendant’s electric ears. The plaintiff recovered judgment in the sum of two thousand dollars, and the defendant appeals from said judgment and from an order denying its motion for a new trial.

In the collision which gave rise to this action, Mrs. D. Augusta Tousley, who was riding in plaintiff’s automobile as his guest, also suffered injuries, on account of which she brought an action against defendant. The defendant’s appeals in that action, which resulted in a judgment in favor of plaintiff therein, have just been disposed of in

Tousley

v.

Pacific Elec. Ry. Co., ante,

p. 457, [137 Pac. 31]. So far as the points here involved are concerned, the evidence in the

[466]

record now before us is identical with that shown in the Tousley case. We may, therefore, refer to the opinion in that case for a general review of the facts surrounding the collision.

But two points are made by the appellant. It is claimed, first, that there was no evidence to justify the finding that the defendant had been guilty of negligence. The views expressed in the Tousley case, where the question is fully considered, furnish a sufficient answer to appellant’s claim in this connection.

The only other contention urged is that, on the evidence, the plaintiff was, as matter of law, guilty of contributory negligence, and that, accordingly, his right of recovery should not have been submitted to the jury. While plaintiff’s negligence was not a matter for decision in the other case, much light is thrown upon the issue by what is said in the opinion in that case. It appears, as is there pointed out by Mr. Justice Angellotti, that the evidence was such as to justify the inference that a person on or over the westerly rail of the westerly track would not be able to see a car approaching the crossing on the easterly track until it had come to within four or five hundred feet. There was also evidence that the car of defendant was going at the rate of forty miles an hour, or about sixty feet a second. At this rate it would traverse four hundred feet in seven seconds, or thereabouts. The plaintiff, according to his testimony, slowed down and looked before he got onto the west track, but saw no car approaching. He looked again when he got “about the middle of the west track,” and saw the electric car, “about three or four pole lengths down.” (The poles were ninety feet apart.) He then, as he testifies, used every effort to stop his automobile, but failed to do so in time to avert a collision. The extreme front of the automobile extended some six feet beyond the driver’s seat. The electric car had an “over-hang” of twenty-three inches beyond the rails, the steps extending four inches further. The space between the tracks was nine feet. Assuming that the tracks were standard gauge—4 feet, 8% inches'—it was necessary for the front of the automobile to traverse a distance of only about three feet in order to bring it to the line covered by the extreme width of the electric car. It cannot be said that the plaintiff was necessarily at fault in not bringing his automobile to a stop in this distance. He