Ryan v. San Diego Electric Railway Co.

GRIFFIN, J. This is an action for damages by respondent Minnie May Ryan, the mother, and respondent Alma Ryan, [462]the surviving widow of Edward Neal Ryan, tried without a jury, for the wrongful death of their son and husband respectively who, on February 13, 1939, was struck by appellant’s streetcar while walking across a street.

No point is raised on this appeal concerning the claimed negligent conduct of appellant nor the amount of damages awarded. Appellant company, by its answer, denied the alleged negligence, and as separate affirmative defenses alleged contributory negligence and contended mainly under this subhead, that the deceased was guilty of contributory negligence as a matter of law in that he attempted to cross the street at other than a crosswalk in violation of a city ordinance which was pleaded and which, if valid and effective, made it a violation of law for a pedestrian to cross a roadway other than at a crosswalk.

It is first contended that the findings of the court failed to dispose of all of the issues raised by appellant’s affirmative defenses and that the evidence establishes as a matter of law contributory negligence on the part of the decedent. Under the latter contention appellant asserts (1) that decedent was crossing the street outside of the crosswalk and in so doing was violating a valid city ordinance, and (2) the fact that the decedent was struck by appellant’s streetcar, under the circumstances related and on a lighted street, establishes its defense as a matter of law.

The facts show that the decedent lived just north of Fir Street on the east side of Fifth Avenue in San Diego; that on the night of his death he left his home on a business errand. No witness testified that he saw the deceased from the time he left his home until the time he was struck by appellant’s streetcar which was proceeding in a northerly direction on Fifth Avenue near Elm Street. It was stipulated that Fifth Avenue at and between the intersections of Elm and Fir Streets was well lighted and that visibility was good.

The evidence discloses that as appellant’s streetcar approached Elm Street a woman passenger walked to the front of it and stood there momentarily. The motorman, believing she desired to alight at that corner, slackened the speed of the car just south of Elm Street, but upon being informed by her that she desired to get off at Fir Street he accelerated its speed and continued through the intersection. As the street car crossed Elm Street an automobile was approaching from the north on the southbound rails, and the lights from that car were shining in the motorman’s eyes. As he was