Lolli v. Market Street Railway Co.

WAED, J. Plaintiff appeals from a judgment entered upon the verdict of a jury in favor of defendants in an action to recover damages for personal injuries. A motion for new trial was automatically denied by failure of any action thereon within the statutory period (Code Civ. Proc., sec. 661). The appeal is primarily directed to challenging certain instructions upon contributory negligence given at defendants’ request or upon the court’s own motion.

The action arises out of an accident which occurred at about midnight on the Mission Street viaduct in San Francisco, over which the Market Street Eailway Company maintains street car tracks running north and south. Eepair work was in progress in connection with the track used for southbound traffic necessitating excavation between the rails of such track and about sixteen or eighteen inches on each side thereof for a distance of some forty feet. The excavation was well illuminated by thirty red lanterns and twenty flares, and there was sufficient space left to the west of the excavation for the use of southbound vehicular traffic. Plaintiff, driving in a southerly direction on Mission Street, had just about reached the block where the excavating was being done, when another car passed him, drove into the excavation, zigzagged, and finally came to a stop at the south end thereof, its left front wheel torn off. Plaintiff drove by the ear in the excavation, parked his car at the west curb about forty-five or fifty feet farther on, and walked back to the place of

[168]the accident. On ascertaining that the driver of the automobile was not hurt, but was intoxicated, he proceeded to the left side of the ear, facing south, to investigate possible injuries to other occupants of the car. As he stood between the two street car tracks, he was struck by a northbound street car of defendant company and injured.

In support of the appeal, the plaintiff urges that the trial court erred in instructing the jury on the subject of contributory negligence and its several elements, for the reason that under the circumstances of this ease, that is, where the conduct charged to be-negligent occurred in an effort to render assistance to persons in peril, no lack of care short of recklessness—of which he contends there was no evidence— will bar a recovery.

The court in effect instructed in the usual manner and in substance on the subject of contributory negligence, among the instructions given being that if the jury found the plaintiff “was guilty of any negligence, however slight, which was the sole proximate cause or which proximately contributed to cause any injuries complained of, then your verdict should be for ’ ’ the defendants; that there are no degrees of negligence or contributory negligence recognized in this state; that it is the duty of any person crossing or about to cross the tracks of a street railway company to exercise his faculties of sight and hearing and watch and listen for cars coming from any direction. The court also instructed that the “test of what constitutes negligence on his part is the standard of an ordinarily prudent man under normal circumstances” and that “the presence of unusual or extraordinary circumstances affecting the transaction will always modify the application of the general rule.” In substance these instructions correctly state recognized rules. In California negligence is not divided into well defined degrees. Rather, the rule is fhat every person must exercise reasonable care. What is reasonable care is dependent on the factors of time, place, person and surrounding circumstances.