Johnson v. Thomas

SEARLS, C. This is an action by Peter Johnson to recover damages for personal injuries received by plaintiff by being knocked down and run over by a horse and wagon driven by a servant of defendant, upon a public street in the city of Los Angeles, California. Plaintiff had a verdict and judgment for $500, from which judgment, and from an order denying his motion for a new trial, defendant appeals. Appellant makes three points for reversal: (1) That the court below erred in denying defendant’s motion for a nonsuit. (2) That the court erred in admitting in evidence, on the part of plaintiff, section 4 of Ordinance 202 of the city of Los Angeles. (3) That the verdict of the jury is not sustained by the evidence.

The evidence on the part of the plaintiff, among other things, tends to show that Macy street, in the city of Los [257]Angeles, runs east and west, is, say, fifty-seven feet wide, and is crossed at right angles by Alameda street, which is ninety-six feet wide, with a sidewalk on the west side thereof twelve feet wide, and two railroad tracks running longitudinally through it, at or near the center thereof. Macy street, going east thereon, has, at the point in question, a downgrade of, say, seven and three-fourths feet in a distance of one hundred and seventy-five feet. Plaintiff is a cabinetmaker and carpenter, and has a shop on the west side of Alameda street one hundred and fifty feet south of its intersection with Macy street. On the fifteenth day of January, 1894, plaintiff started to go from Kerehkoff & Cuzner’s mill, on Macy street, to his shop, on Alameda street. He had his apron full of blocks, brackets, etc., which he held with his right hand, and in his left hand he carried some larger articles of like character. His course took him west along the south side of Macy street, to and across Alameda street, thence south, on the west side of the latter street, to his shop. "When crossing Alameda street, the horse and heavy spring wagon of defendant, driven rapidly by Albert Jennings, the servant of defendant, came east down Macy street, turned south into Alameda street, and struck plaintiff, who was upon the crossing, and within eight to ten feet of the sidewalk, on the west side of Alameda street, knocking him down, and two wheels of the wagon passing over him, whereby he was seriously injured, etc. Plaintiff first saw the horse and wagon of defendant a block away (one hundred and seventy-five feet) coming down Macy street, when he was near the center of Alameda street, and, as he testified, coming down Macy street ‘ ‘ at terrific speed, ’ ’ and supposed from the rapidity with which the horse was being driven he would continue on straight down Macy street, and did not further observe the team or look for it until at or about the moment he was struck down. To the question asked plaintiff, on cross-examination, “Well, at the time when you saw him coming rapidly, didn’t it excite your fear of danger at all?” He answered, “No, sir; it didn’t. I supposed by the way he was coming that he was going on right down Macy street.” Again, he said, in answer to what reason he had for thinking he would continue down Macy street, “He was going so fast. It is kind of a sharp turn there for a man down Macy; and, as