Criswell v. Pacific Electric Railway Co.

DRAPEAU, J. pro tem. This is an action for damages for alleged negligence which caused a collision between an automobile and an electric street car at an intersection of two streets in Hollywood. At the time of the collision, it was late afternoon but still daylight; it had been raining and the tracks were wet, but the weather was then clear. Traffic was very heavy.

The plaintiff was driving south on Argyle Avenue to where it meets Hollywood Boulevard. He made the boulevard stop, and started across Hollywood Boulevard, in the center of which there is a two-track electric railway line, belonging to the defendant, Pacific Electric Railway Company.

By reason of traffic conditions, the plaintiff went slowly across the intersection, and either came to a stop or was proceeding very slowly across the defendant’s car tracks, when his automobile was struck by a street car traveling easterly on Hollywood Boulevard and belonging to the defendant street car company and operated by a motorman, also a defendant.

Among other things, there is conflict in the testimony as to the speed, respectively, of the automobile and the street car; as to when the brakes were applied on the street car; and as to whether the plaintiff and the motorman looked for and observed approaching traffic, as it was their duty so to do.

After argument, and the reading of the court’s instructions, the issues were submitted to a jury, which returned a verdict in favor of the defendants.

Plaintiff concedes that there is sufficient substantial evidence in the record to sustain the verdict, but argues that the evidence upon the issues of negligence was very evenly balanced, and that alleged errors as to instructions given by [821]the trial court could well have been the means of influencing the jury’s conclusions on these issues.

The instructions complained of will be considered under two heads: First, what we may denominate the “look and listen” instruction; and, second, instructions as to speed at the intersection.

The “look and listen” instruction is as follows:

“You are instructed that the motorman, if exercising ordinary care in operating the street car in this case, had a right to presume that any person approaching the intersection would perform the duty which the law imposed upon him to look and listen for the possible approach of cars and no duty rested upon the motorman to slow down or stop his car until he had reason to believe that the plaintiff approaching the intersection was not performing or likely to perform his duty in that respect, when the .motorman saw or in the exercise of ordinary care concluded that the plaintiff would attempt to cross in front of his car, if the motorman then used ordinary care to stop his ear, that was all that was required of him in that respect.”