Abrahams v. Los Angeles Traction Co.

CHIPMAN, C. Action for personal injury. Trial hy jury, and verdict for plaintiff in the sum of three thousand dollars. Defendant appeals from the judgment entered upon the verdict and from an order denying defendant’s motion for a new trial.

Plaintiff was employed to drive a sprinkling wagon hy one Cross, in whose employ he had been for three years, in the city of Los Angeles; Pico and Georgia Bell streets run at right angles to each other, the latter north and south; double streetcar tracks pass over Georgia Bell street at the points in question; on the morning of November 20, 1895, plaintiff filled his tank and drove to Pico street, as was his custom, and thence along Pico street to its junction with Georgia Bell street, which latter he was to sprinkle; as he entered Georgia Bell street a car passed going south, and he turned and followed this car along the track toward Sixteenth street. He testified; “On entering the street I turned around in order to see whether I could see a car or hear a bell. I saw no car nor did I hear a bell. And then I followed the car at a rapid pace in order to sprinkle, and during the sprinkling I turned around several [413]times in order to see that no accident might happen, for I had always sprinkled in that manner without any accident.” Again he testified: “I entered Georgia Bell street; I kept the right wheels oí my sprinlding cart upon the west side of the right-hand track or rail of the street-c^r track. We always so entered, drove and sprinkled continually in that way.” At a distance of about six hundred or seven hundred feet from Pico street he met a car coming north on the other track -to his left. He testified: “I drew my mules a little distance from the track, so I might- not sprinkle the car as it passed me.” About this same time a car coming behind him struck his cart with great force and threw him forward under the mules’ feet.

Appellant relies upon the case of Everett v. Los Angeles Ry. Co., 115 Cal. 105. In that case the court said: “In walking or riding along a line of railway where cars or trains are passing or likely to pass at short intervals, one while in a position to be endangered by such vehicles must pay attention to his surroundings, and employ his natural faculties, and exert due diligence to avoid such danger, and he must listen and look to ascertain whether danger is threatened, by his situation, and a failure so to do constitutes negligence per se.” Again: “With greater reason does this rule apply to one who is traveling laterally along the line of a railroad and knows that engines will soon followr.....It is negligence for a person to walk upon the track of a railroad, whether laid upon a street or upon an open field, and he who deliberately does so will be presumed to have assumed the risk of the peril he may encounter.” Quoting these paragraphs, appellant contends that they apply here and are conclusive against plaintilf’s right to recover. The two cases are widely divergent in their facts. Everett was riding a bicycle which with little strength exerted by the rider could almost instantly be turned aside sufficiently to escape an approaching car; the motorman sounded the gong and used every means to warn the rider of the car’s approach, and persons on a passing car called out a warning to him; the speed of the car wras reduced, the reverse lever was used, and all available means, by warning and by the appliances of the car, were used to avoid the accident, to all of which Everett gave no heed. Abrahams was on the track rightfully to water the street, and where he