Scott v. San Bernardino Valley Traction Co.

This is an action by husband and wife to recover damages sustained by the wife for personal injuries alleged to have been caused by the negligence of the defendant. Plaintiffs recovered and the defendant appealed from the judgment within sixty days after its rendition. A bill of exceptions sets forth the evidence.

A street-car operated by defendant collided with a buggy in which the plaintiffs were driving, whereby the plaintiff, Jennie B. Scott, was thrown out and injured. It is contended that the plaintiff, George H. Scott, was negligent in driving upon and across the track in front of the car, and that this negligence contributed to the injury.

In considering this proposition, it is necessary always to bear in mind that the jury has found to the contrary. In this case it not only returned a general verdict to that effect, but, in answer to a specific question, it declared that George H. Scott did not negligently drive upon the track. If there was any substantial evidence in support of this fact the verdict must stand although the preponderance of the evidence may be against it. The question whether or not upon a given occasion the conduct of a person is negligent is always comparative and relative. The conduct must be compared to that of an assumed person of ordinary prudence and must be considered

The collision occurred on Orange Street in the city of Red-lands, at a point about ninety-eight feet south of the south intersecting line of State Street. Scott and his wife drove up Orange Street from the north and stopped in front of a store on the west side of that street at a point almost directly opposite where the collision took place, where, leaving the buggy and horse by the curb facing south, in care of his wife, Scott went into a hat store, one door further south than the buggy,

The buggy had immovable side curtains so placed that the driver, while in the usual position, could not readily look to the rear. While Scott was in the hat store the car in question had come from the north and had stopped at the comer on Orange Street south of State Street. As Scott came out of the store and walked northerly to his buggy the' car was standing at the corner in plain sight and in line with his buggy. He looked both ways as he got into the buggy. The evidence is not clear on this point, but the jury may justly have inferred the fact. However, he did not observe the ear, and it must be conceded that he did not look with care. There is a conflict of evidence upon the question whether the car had started south or was standing motionless at the corner at the time he made this observation, got into the buggy and started to make the turn to the north. Gaylord testified that he was standing on the east side of Orange Street to the north and rear of the car, that when he first noticed it the car was just a trifle from the comer of State Street in motion, going south; that he next observed a horse coming across the track to the south of the car, with a buggy attached, that the car was then about two ear lengths (seventy-eight feet) from the horse, and could not have more than started from the corner. If this was true, the car must have been standing still when the horse started. Meek, who was on the ear, testified that the car was standing at the comer when the buggy started. Smith, for the defense, testified that the ear was just starting in motion as he saw Scott start across the track, which, of course, was some seconds after Scott started from the side of the

It is the law that one walking or driving in a public street is bound to use reasonable care to look and listen as he goes, so as to be able to avoid collisions with others exercising the common privilege of using the street. This duty is not confined to persons driving or about to drive upon a street-car track. It rests alike upon every person while in a public street. It is as obligatory upon the motorman propelling a car as upon the footman, horseman, and driver. In determining whether or not he will cross such a street at any given time and place, one may, and often must, act upon the theory that he has an equal right with others, and upon the belief and expectation that others as well as himself will use the reasonable care that the situation requires, and that while he is necessarily looking out ahead to avoid running down any person on the street and to guide himself or his team, others approaching him from the side will in like manner look out ahead and avoid a collision with him. A street-car cannot go on the street except upon its rails and hence it has the better right to that space, to which others must yield when necessary, but otherwise its rights are not superior to that of any other person who has occasion to use the street. (Shea v. Potrero etc. Co., 44 Cal. 414 ; Clark v. Bennett, 123 Cal. 280 , [ 55 Pac. 908 ].) The reasonable care which is required must be measured by all these conditions, rights, and circumstances. The foot passenger or driver of a horse has a right to expect that those in charge of street-cars will operate them in the manner and run them at the speed which is customary at the particular place, and that they will give the usual warnings and signals, and take the usual precautions to avoid injury to others.

Assuming, therefore, that George H. Scott did see the car standing at the corner of State Street, and apparently about to start south, and that he thereupon started to drive across the street to turn northward, as he did, we cannot say, as a matter of law, that it was a negligent act. People do the same thing every day under similar conditions in every city. It cannot be said that an act which the majority of men would do in the existing circumstances and which we may presume is usually done in safety, is negligence, per se. “It falls within the province of the jury, not only to determine the facts constituting negligence, but also the question as to what would be the conduct of a person of ordinary prudence, under similar circumstances, which, commonly, is a question of fact, not of law. In general, all these questions are for the jury, whose verdict in favor of the plaintiff must be regarded as conclusive, unless the validity of the defense, both as to the existence of the negligence and its effect as contributing proximately to the injury, follows necessarily from the undisputed facts.” (Schneider v. Market St. Ry. Co., 134 Cal. 488 , [ 66 Pac. 734 ].) “It cannot be said that a person is guilty of contributory negligence merely because

It may be conceded that the failure of Scott to observe the car standing at the corner ready to start at the time he started to make the turn, was negligence. But the jury would have been justified in finding that, even if he had seen the car, it was not negligence for him to attempt to cross in front of it, and they may rightly have concluded that his negligent failure to perceive it did not contribute to the injury. Their verdict compels us to assume that they took that view. A negligent act or omission “must have contributed directly to the injury, or, however improper or illegal it may have been in the abstract, no action or damages can be founded upon it.” (McKune v. Santa Clara etc. Co., 110 Cal. 486 , [ 42 Pac. 980 ].)

With respect to his failure after he got upon the track to lean forward and look toward the ear to see if it was approaching before he was so far turned as to be able to see • it from his position in the buggy, we are of the opinion that the question whether or not he exercised ordinary prudence was also for the jury to decide. The car, according to its custom, would not be going at full speed at that point. It was on an ascending grade equipped with air-brakes and could be quickly stopped. It was the motorman’s duty to keep watch ahead of his ear for vehicles, and it is to be presumed that he usually did his duty in that respect. Scott found other teams obstructing his course and requiring his attention to avoid them. It is not clear from the evidence, , that, even if he had looked when upon the track and had seen the car approaching, he would or should have anticipated the

It is unnecessary to discuss at length the question of the sufficiency of the evidence to prove the negligence of the motorman. Out of his own mouth he stands convicted. Conceding that the actions of the horses standing in front of the store at his left attracted his attention in that direction, it did not justify him in proceeding blindly up the street without looking ahead or slackening his speed.

In response to an interrogatory the jury found specially that the motorman, after he discovered the dangerous position of plaintiffs, used ordinary care with the appliances under his control, to prevent the collision. As this issue was deter

The defendant asked the following instruction: “If the jury find from the evidence that defendant’s employees in charge of the car at the time of the collision, as soon as they discovered the dangerous position of plaintiffs, used ordinary care to prevent the collision, the defendant would not be liable for the result of any collision which might have been prevented if such employees had been possessed at that time of other appliances for preventing the collision which they did not possess.” The court gave it, but added the following: “Unless a mere running of the car without having it provided with such additional appliances, if there were any, would in itself have amounted to wanton and reckless conduct, on the part of the defendant.” We do not think there was any error in this of which the defendant can complain.

The complaint alleged that the plaintiffs had suffered damage to the amount of fourteen thousand dollars by reason of the injuries to Mrs. Scott, and to the extent of one thousand dollars by reason of expenses in curing her hurts. There was no evidence of any expense. The answer denied that plaintiffs had, by reason of the collision, sustained any damage in excess of one thousand dollars. The verdict fixed the damages at fifteen hundred dollars. The court instructed the jury that if they found for the plaintiffs the verdict should be “in such sum as damages, not exceeding the sum of $15,000 asked for in the complaint, as may have been sustained by them on account of said collision.” The defendant urges this as a prejudicial error, as from the evidence the plaintiffs were not entitled to more than fourteen thousand dollars. The jury, in other instructions, were directed to estimate the damages “from the facts and circumstances in evidence,” that in determining the amount “they should take into consideration all the facts and evidence before them,” and that if they found for the plaintiffs “the plaintiffs are entitled to recover from the defendant such damages as you may find from the evidence” plaintiffs have sustained by reason of the accident. It is clear that the jury must have understood that

There are no other points of sufficient importance to require notice.

The judgment is affirmed.

Angellotti, J., Beatty, C. J., and Sloss, J„ concurred.

Rehearing denied.