Healy v. Market Street Railway Co.

NOURSE, P. J. Plaintiff sued for damages arising out of the death of his minor son. The cause was tried with, a jury, and plaintiff had a verdict for five thousand dollars. The defendants have appealed from the judgment and from the order denying their motion for judgment notwithstanding the verdict.

The deceased child was a boy of four years and eight months. He had been taken by his mother to play with a neighbor boy who lived a block away and across two intervening streets from his home. The defendant corporation operated a street railway system on Twentieth Avenue in San Francisco. About 4 o’clock P. M. of a clear day in June the defendant Allen, as motorman, so operated a street car on that line that it came to a full stop at the intersection of Twentieth Avenue and Rivera Street for the discharge of passengers. As the car stood at that point the boy was seen to leave the opposite curb and endeavor to cross Twentieth Avenue at a point about forty feet south of the intersection. The street car was started at about the same time, and the boy, approaching from the driver’s left, was struck by the right front portion of the fender and carried about fifty feet before the car came to a stop. The motorman alighted and found that the boy had fallen from the fender and was lying immediately in front of the right front wheel. The motorman on his own initiative returned to his car and attempted to reverse it. There was a deep slope in the grade of the street at that point so that when the motorman released the brakes, the car lurched forward. After the boy had been removed from the track it was found that his thigh was practically severed, and he died a few hours later.

Appellants’ first point is that there was no evidence of negligence on their part. What we have said in the statement of facts is sufficient answer. Passengers on the street ear testified that they saw the boy on the curb apparently waiting for the car to come to a stop. The defendant Allen testified that he did not see the boy until he was directly in front of the car. The street was free of all other vehicle traffic, and no parked vehicles obstructed the clear view of the street. The jury was justified in drawing the inference that the motorman was not looking, and in support [737]of the judgment we must assume that it drew that inference. The same may be said as to the act of the motorman in attempting to reverse the heavy car up grade with the boy lying directly under the wheel. If the jury inferred that the defendant was negligent in this respect the verdict has additional evidentiary support. Counsel for both parties have devoted a large part of their briefs to arguments on what they call the “first negligent act” and the “second negligent act’’ meaning the alleged negligent operation of the car in the first instance and the later attempt of the motorman to reverse the car up the grade to release the boy. The arguments are interesting but no more. The respondent pleaded negligence in general terms and under the settled rules was thus permitted to prove any and all negligent acts of the appellants in relation to the operation of the street car.