O'Meara v. Swortfiguer

WILBUR, C. J.

This is an action to recover for personal injuries resulting to the plaintiff by reason of a collision between her and an automobile operated by the defendant at the intersection of Jones and O’Farrell Streets, in the city of San Francisco, on the sixth day of September, 1919. The defendant was proceeding westerly along 0 ’Farrell Street and the plaintiff had alighted from a north-bound Jones Street car to transfer to a north-bound cable car which turned into Jones Street northerly from O’Farrell Street. Defendant’s automobile had been following the O’Farrell Street car which turned from O’Farrell Street to Jones Street. The testimony as to how the accident occurred varied from that of the defendant to the effect that his automobile was standing still at the time of the collision and that the plaintiff heedlessly ran into its side and the testimony on behalf of the plaintiff that the automobile operated by the defendant suddenly swerved to the left from behind the O’Farrell Street car. which was turning

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from O’Farrell to Jones Street, and, passing beyond the center line of O’Farrell Street, struck her when she was about in the middle of the street intersection. The testimony also varied as to the speed at which the defendant was operating his machine at the time of the accident, from fifteen miles per hour to his own testimony to the effect that he was at a standstill at the time of the collision.

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The plaintiff offered in evidence certain ordinances of the city and county of San Francisco regulating street traffic and the court instructed the jury upon the theory that these ordinances established the law of San Francisco with relation to such street traffic and that if the defendant violated the terms of the ordinance he was guilty of negligence. The case of

Ex parte Daniels,

183 Cal. 636 [21 A. L. R. 1172, 192 Pac. 442], had not been decided at the time of the trial of the action, which occurred July 26, 1920. By that decision it was determined that an ordinance of a county, city, or city and county in conflict with the Motor Vehicle Act was void in the particulars where the conflict existed. There was testimony to the effect that the defendant was traveling more than ten miles and less than fifteen miles an hour. If, under the law, it was permissible for him to travel fifteen miles per hour, under the circumstances the instruction was erroneous. It is contended by the respondent, however, that the instruction limits the speed of ten miles an hour to those occasions where the view was obstructed and that defendant’s testimony shows that his view was not obstructed. On the other hand, there is the evidence of the plaintiff that she looked toward the direction from which the automobile was approaching and did not see it and. there was other evidence to the effect that the automobile was following the street-car, and plaintiff’s explanation of the accident seems to be that the defendant suddenly swerved out from behind the street-car and almost immediately struck her. Under these circumstances the instruction was erroneous.