Lee v. Market Street Railway Co.

HENSHAW, J.

This action was brought to recover damages for personal injuries sustained by plaintiff. A verdict was given in his favor, judgment in due course followed, and from that judgment and from the order denying defendant a new trial it appeals.

Upon the evening of September 8, 1897, plaintiff attempted to cross Kearny Street in the block between Jackson and Washington streets. While upon the track of the street railroad he was struck by an electric car approaching from Washington Street, and sustained the injuries complained of, the most serious of which was a crushed foot, necessitating amputation. Although the accident occurred in the evening, the street was brilliantly lighted and objects were plainly discernible. The ear in question could have been seen, and was seen, from a distance of more than one hundred feet from the place of the accident. It must be taken as proved to. the satisfaction of the jury that the car was moving at an unusual rate of speed and was sounding no gong nor alarm-bell.

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But it is strenuously argued by appellant that, conceding it to have been negligent in its operation of the car, none the less the plaintiff himself was guilty of contributory negligence, barring bis right of recovery. Upon this plaintiff’s own testimony is, that having been standing upon the curbstone, he looked up and down the street before he adventured the crossing; and he further testifies: “All that I know about the accident is, that I was struck and my foot was mangled. I know that the car was right on me; and I know that some man hollered in the car. I do not know where the man was who hollered at me. I supposed he was in the car. The sound was right at me when I heard it.” That a man, under these circumstances, should thus heedlessly cross a public street in the middle of a block, and know nothing of the approach of a street-car until the moment when it struck him, is a demonstration of. carelessness and negligence so complete as to require no comment. Were this the whole of the matter, it would be clear that by his own conduct plaintiff had forfeited his right to a recovery. But there is a further principle firmly established in this state, that one having an opportunity by the exercise of proper care to avoid injuring another, must do so, notwithstanding the latter has placed himself in a situation of danger by his own negligence