Pevonak v. City & County of San Francisco

PRESTON, J.

The judgment is reversed, and in so ruling we assign the following grounds:

Appellant asserts that the record shows the following facts: “The action is one for damages for personal injuries arising out of an accident which occurred on August 31, 1923, at the intersection of Kearny and Market streets, in San Francisco. At this point on Market street there are four parallel street car tracks, the inside tracks being operated by the respondent Market Street Railway Company (hereinafter called the Market Street Company), and the outside tracks being operated by the respondent City and County of San Francisco. (The latter tracks will be referred to hereinafter as the ‘Municipal tracks.’) On the evening of that day, about 5:30 o’clock p. m., the appellant arrived at the safety zone at said intersection for the purpose of taking a No. 21 car of the Market Street Company outbound toward her home. There was, according to the testimony, somewhat of a tie-up, and quite a number of people were waiting in the safety zone. A No. 21 car approached on the Market Street Company tracks, and as it did so a group of people, estimated at ten or twelve, walked across the Municipal tracks to a position between the Market Street Company tracks and the Municipal tracks for the purpose of boarding said No. 21 car. Appellant was one of this .group, being the person on the extreme right thereof. The No. 21 car began to slow up, but was motioned on by a Market Street Company starter, who was standing near the group of prospective passengers. In obedience to said signal the No. 21 car passed by the safety zone and the intersection of Kearny

[650]

street without stopping. As it passed through the safety zone it was closely followed on the Market Street Company tracks by a No. 8 car. As this No. 8 car approached the safety zone there approached, along the Municipal tracks and practically abreast with the No. 8 ear, a ‘K’ car, operated by respondent City and County of San Francisco. So closely behind the No. 21 car came this No. 8 car and ‘K’ car, that when the No. 21 car had been motioned past the intersection without stopping, there remained no opportunity for the group of ten or twelve persons to recross the Municipal tracks to the position from which they had started. In case the ‘8’ and ‘K’ cars should persist in coming on together, therefore, the only means of safety which this group would have would be to stand between the two outbound pairs of tracks. There is barely room for a person of ordinary physique to stand between cars on the two pairs of tracks; there is room if such person stands sideways between the two tracks, but not if he stands at right angles. The position of greatest danger is when a person is standing between the center sections of the two cars, for the ‘K’ car is wider by 1 foot 7 inches at the center than it is at the ends. The evidence indicates that both the ‘8’ and ‘K’ cars came on at a rapid rate of speed and did not slow up at all as they began to pass the group. (One witness testified that the ‘8’ slowed up slightly, but that the ‘K’ came through without changing its speed at all.) Of the group of ten or twelve persons, appellant was standing on the extreme right, i. e., in the most westerly position (toward Twin Peaks). She was standing slightly apart from the others. The others were grouped together closely. Observing that the two cars were going to try to pass simultaneously, they huddled together, side by side, their shoulders, however, overlapping. About four feet of the