Neff v. United Railroads of San Francisco

LAWLOR, J.

The defendant, United Railroads of San Francisco, appeals from a judgment in the sum of one thousand dollars against it and in favor of plaintiff, John Neff, in an action tried by jury for damages for personal injuries resulting from a collision between a bakery wagon which Neff, as an employee of Langendorff Baking Company, was driving, and a street-car of the defendant, which collision is alleged to have been caused by the negligence of defendant’s servant in the operation of the car. Defendant denied the allegations of negligence on its part, and in turn alleged plaintiff to have been guilty of contributory negligence.

The accident out of which the action arose occurred at the intersection of Baker and Sutter Streets, in San Francisco, on February 11, 1918. At this point Baker Street is practically level, and Sutter Street slopes toward the east. Respondent was driving north on the east side of Baker Street in a covered wagon drawn by a team of horses. Upon arriving at the Sutter Street junction he stopped the

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wagon to allow a west-bound. Sutter Street car to pass. At that time the horses’ heads were about even with the southerly property line of Sutter Street. Just before starting the team, after the west-bound car had passed, respondent looked to the west for approaching east-bound cars. His view in that direction was obstructed by a building on the southwest corner of the intersection, and was limited to about half a block. He saw no cars approaching and heard no bell or other warning, so he started north across Sutter Street, driving his team at a walk or slow trot. When the team and wagon were upon the tracks he discovered an oncoming east-bound car. He attempted to avert the collision by increasing the gait of the team, but was unsuccessful and the car struck the left rear wheel of the wagon, upsetting it, and throwing the horses to the ground. Respondent sustained injuries from the impact and from being kicked by the horses.

There was evidence that the car was going thirty or thirty-five miles an hour, although the motorman testified it was not exceeding eight. The estimates of witnesses as to how far the car went after the collision before it could be stopped varied from sixty feet to half a block.

Appellant contends the trial court erred in refusing to direct a verdict in its favor upon the ground that the evidence was insufficient to establish negligence on its part, but conclusively established contributory negligence on the part of respondent; in instructing the jury on the subject of “last clear chance,” which doctrine, according to appellant, is not applicable to this case, and in giving an erroneous instruction on the subject of appellant’s negligence, which it is insisted constituted a charge on a question of fact.