Tucker v. United Railroads

MELVIN, J.

Plaintiffs were successful in an action against the defendant for damages for the death of Eva May Tucker, which, it was alleged, was due to the negligence of defendant’s servants in the operation of an electric streetcar. Defendant appeals from the judgment and from an order denying its motion for a new trial.

[703]

The accident took place at about 8 o’clock in the evening. The car had just traversed the curve from Clement Street to Thirty-third Avenue, in San Francisco, and was proceeding in a southerly direction on the last named thoroughfare, which at that place is unpaved. The car almost stopped at the curve, but on signal from the conductor the motorman applied the current and the car moved into Thirty-third, Avenue with increasing speed. The night was dark and somewhat foggy. There were no street lights, but the headlight was shining brightly, rendering objects on the track clearly visible for a distance of forty feet from the motorman’s position. The car was brilliantly illuminated within, and its light could have been seen by a person having normal vision for a much greater distance than forty feet. The car was a heavy one and it made considerable noise while in motion, particularly in taking the curve into Thirty-third Avenue. When it began its journey along the avenue, the conductor went forward to the front platform. There was testimony tending to show that thereupon he engaged in some sort of a scuffle with the motorman and that, putting on the motorman’s cap, he took hold of the controller bar. This testimony is disputed, however, as we will have occasion to note in the further discussion of this case. The employees of defendant saw Eva May Tucker when the car had reached a point near the middle of the block about three hundred feet from the curve. It was then moving quite rapidly. She was a few feet in front of the car and was standing, or walking, on the track, with her back partly turned toward the car. The motorman attempted to stop' the car but could not do so until the woman had been struck and killed.

The trial was before the court without a jury, and judgment was given in favor of the plaintiffs for two thousand five hundred dollars.

The court failed to find upon the alleged contributory negligence of the deceased. This is specified as error, and the appellant also asserts that upon the uneontradieted evidence the deceased was guilty of contributory negligence proximately causing her death.