Crowley v. Strouse

TEMPLE, C. This action was brought to recover damages for personal injuries alleged to have been sustained while plaintiff was crossing Ninth street, in San Francisco, at its intersection with Howard, through being run into by a wagon negligently driven by the defendant. The case was submitted to a jury, which returned a verdict for plaintiff, and defendant appeals from the judgment, and from an order refusing him a new trial.

Plaintiff’s testimony tended to prove that plaintiff was crossing Ninth street, going toward Tenth, on the street crossing, when a meat wagon driven by defendant’s servant rapidly down Howard turned upon Ninth, over the crossing where plaintiff was; that plaintiff started to run down Ninth, leaving the crossing, and defendant’s wagon, without slacking speed, ran upon her, knocking her down, and inflicting upon her the injury complained of. Naturally, the defense contended that by leaving the crossing, and running down the street, instead of hastening across, plaintiff increased the danger; was, in fact, guilty of such contributory negligence as should prevent her recovering. The plaintiff, who was about seventy years old, at the trial stated that she did not see the wagon, but, hearing the noise, she thought it was the street-car (on Howard street, I presume), and so started to run as fast as she could, but had proceeded but a few steps when she was struck. This raised a question, undoubtedly, as to whether plaintiff was not guilty of negligence which contributed proximately to the injury. But the matter was left to the jury, and it cannot be said that there was not sufficient [31]evidence to justify their conclusion. Defendant’s evidence conflicts with that of the plaintiff, but, as the jury evidently did not believe defendant’s witnesses, and the court refused a new trial, that is not a matter of much interest here.

There is nothing in the claim that the verdict is against law. The point there made is that there was no proof of negligence on the part of defendant. The argument to sustain the point is that plaintiff was guilty of contributory negligence. This point cannot be made under the objection that the verdict is against law. Still, it is the same as that made under the exception as to insufficiency of the evidence, and need not be further considered.

The defendant complains of the refusal of the court to give certain instructions. The first is as follows: “If you believe from the evidence that the plaintiff brought about the collision by pursuing her intended route, when she could easily and safely have avoided the contact by turning to the left, and from the wagon, then she is guilty of contributory negligence, and your verdict should be for defendant.” This instruction was properly refused. It involves the proposition that if the jury can now see that there was some other course open to plaintiff than the one she did take, which would have prevented the injury, she cannot recover. This is not law. That she used bad judgment in the excitement of imminent danger does not necessarily prove negligence. Whether the fact that she took an unwise course was negligence, under the circumstances, was for the jury.