Borland v. Key System Transit Co.

PRESTON, J.

In this action to recover damages for personal injuries received by plaintiff as the result of collision between an automobile in which she was riding and a streetcar operated by defendant transit company, defendant has appealed from judgment in her favor upon three grounds, to wit: Insufficiency of the evidence to justify the verdict and judgment, errors in instructions and prejudicial misconduct of counsel for plaintiff.

The collision occurred August 14, 1924, about 8 P. M., at the intersection of Fifty-eighth Street and Telegraph Avenue, a heavily traveled main thoroughfare between Oakland and Berkeley, California. Plaintiff and her husband in their Ford coupe were proceeding westerly on Fifty-eighth Street. Reaching said intersection, the husband, who was driving, brought the automobile to a complete stop, al

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lowing north-bound vehicular traffic on Telegraph Avenue to pass. He then looked to his right and saw a street-car southbound on Telegraph Avenue. Judging, however, that it was far enough away to permit him to cross in safety, he started up, but as he was about to pull across on to the south-bound track, his wife screamed “that car is right on top of us," whereupon he immediately swung around to the left to avoid being hit, if possible. He succeeded to such an extent that the street-ear merely hit the right rear side of the automobile, dragging it some distance. As a result, however, plaintiff sustained injuries of a painful and serious nature.

Although the evidence is to a certain extent conflicting, yet there is ample testimony in support of plaintiff’s contention that when they first saw the street-car it was such a distance away as should and would have allowed them to cross Telegraph Avenue in perfect safety had not said street-car borne down upon them at a high and unusual rate of speed and traversed more than a block without any warning of its approach. Appellant’s contention of insufficiency of the evidence is predicated upon the claim that the testimony of the driver of the automobile conclusively shows contributory negligence on his part, which negligence is imputable to plaintiff, his wife, and under the established facts becomes solely a question of law. In other words, seeking to invoke the rule that where the facts are settled and it clearly appears that the injured party did not exercise ordinary care, the question of contributory negligence is a question of law