Horgan v. Jones

TEMPLE, J.

On the 11th of January, A. D. 1897, the corporate defendant, the railway company, owned and was operating a street railway on Page street, in San Francisco, between Broderick and Devisadero streets. On this block the street is sixty-eight feet nine inches wide, and the sidewalks twelve feet each. From the curb on the southerly side to the nearest rail is eleven feet and four inches. The grade from Broderick street to Devisadero street is twelve and twelve hundredths per cent descending.

At about 3 o’clock P. M. of that day an electric-car was descending from Broderick on the southerly track easterly toward Devisadero street. A four-horse team, hauling a heavy, but unloaded, truck, was descending on the southerly side of the street, having its northerly wheels very near, but not on, the track. It was in advance of the car, but how far when the car left Broderick street the evidence does not show. When the car was about half way to Devisadero, the conductor of the car thought the truck was about fifty feet ahead. From street to street the block is four hundred and twelve and one-half feet. The truck was so situated that it must have been obvious to the motorman that the car could not pass without a collision. A collision did occur, which resulted in a serious injury to plaintiff. The suit is against the owner of the street railway, Lidstrom, the motorman, and against Jones and King,

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owners of the truck, and Morman, the driver of the truck. The action is so brought upon the theory that the negligence of all contributed to the injury. The leaders of the team ran down the street and against plaintiff.

At the trial the appellants admitted all the facts necessary to establish the case for the plaintiff, except negligence on the part of such defendants. Of course, it does not matter how negligent the driver of the truck may have been, if there was proof to sustain the verdict to the effect that the motorman was also guilty of negligence, which contributed directly to the' injury. In other words, there is no purpose in the inquiry as to whether the driver of the truck was guilty of mere contributory negligence such as would have prevented him from recovering damages for personal injuries against the railway company. The real contention of the appellants is, that the injury resulted solely from the negligence of the driver of the truck, and that the motorman was not negligent.