O'Donnell v. Market Street Railway Co.

SPENCE, J. —Plaintiff, Virginia O’Donnell, a minor, sought to recover damages in the sum of $7,520 for personal injuries sustained as the result of a collision of a street car of the defendant company and an automobile in which said plaintiff was riding as a guest. Plaintiff Cecelia O’Donnell, the mother of said minor, sought to recover damages in the sum of $334.43, which was alleged to have been the amount necessarily expended by her for the treatment of her daughter’s injuries. The complaint, which was filed in the Superior Court in the City and County of San Francisco, set forth two counts, the first embracing the alleged cause of action of the injured minor and the second embracing the alleged cause of action of her mother. Upon a trial by jury, the injured minor had judgment in the sum of $1500 and her mother had judgment in the sum of $334.43. The defendant company and defendant ITighstreet, its motorman, appeal from said judgments.

The collision occurred at the intersection of Eighteenth Avenue and Balboa Street in San Francisco on May 4, 1935, at about the hour of 5 o ’clock P. M. The defendant company operates a double track street railway on Balboa Street, which runs in a general easterly and westerly direction. The car involved in the collision was being operated in an easterly direction along the southerly track. The automobile in which the injured plaintiff was riding was being driven by her cousin, Mary McHugh, in a northerly direction along Eighteenth Avenue. There were no signals or stop-signs of any kind at any of the corners of said intersection. The collision occurred about ten feet west of the easterly curb line of said Eighteenth Avenue and the evidence showed that the street ear carried the automobile from 50 to 65 feet eastward along the track before coming to a stop.

Appellants first contend that “the evidence demonstrates that the negligence of Mary McHugh was the sole proximate cause of any damages sustained by plaintiff’’. Under the circumstances before us, this appears to be the [633]equivalent of a claim that the evidence was insufficient to support the implied finding that the appellant motorman was guilty of negligence which was the proximate cause, or a proximate cause, of the collision. We find no merit in this contention. It may be conceded that there was ample evidence from which the jury might have determined that Mary McHugh was guilty of negligence, but it also appears that there was ample evidence from which the jury might have determined that both Mary McHugh and the appellant motorman were guilty of negligence and that the concurring negligence of both was the proximate cause of said collision.