Dinsmore v. California Highway Indemnity Exchange

THE COURT.

This is an action for personal injuries brought by plaintiff, a minor, by his guardian

ad litem.

Plaintiff, who is a boy of eight, was riding on a street-car bound east on Haight Street in San Francisco. The car reached Buchanan Street and plaintiff got off the front end, where he was struck by a jitney bus driven by defendant John Volz. He sustained severe injuries, and sued the driver of the bus and California Highway Indemnity Exchange, which had issued to the driver an insurance policy under the provisions of an ordinance of the city and county of San Francisco which made the insurer liable for damages resulting from negligent operation of the bus, up to the sum of $5,000. At the conclusion of the trial, the court, upon motion of counsel for defendants, directed the jury to bring in a verdict for the defendants. Disregarding that order, the jury returned a verdict for plaintiff in the sum of $3,000, which verdict was set aside by the court.

The grounds upon which the verdict was directed are, first, that the evidence fails to show any negligence on the part of the driver; second, that contributory negligence of the plaintiff is shown; and third, that the evidence does not establish the liability of the defendant insurance company for an injury arising out of the operation of the particular automobile involved herein.

With respect to the first ground, the record shows that the driver of the bus had nine passengers in the car. Two were in the front seat with him, and another was seated on the front door. The driver knew the street very well, saw the street-car, and was proceeding to pass it. His machine cleared the street-car by only two feet, in violation of the provisions of the California Vehicle Act, section 134.

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He gave no signal or warning, contrary to a city ordinance requiring the sounding of bell or horn by a jitney bus approaching an intersection. The testimony varies as to the speed at which he was going, the estimates ranging from ten to twenty miles an hour, which latter figure would constitute another violation of section 134 of the California Vehicle Act. The evidence is also conflicting as to whether the car had stopped when he attempted to pass it, but several witnesses testified that it had. It appears that plaintiff had taken one or two steps after alighting from the car, but the driver testified that he did not see him until he was only a foot in front of the automobile. Several witnesses testified that five or six seconds elapsed between the time plaintiff alighted and the moment of the impact. We need go no further into this phase of the case. There is obviously sufficient evidence indicative of negligence upon which to go to the jury. (See