Runnels v. United Railroads of San Francisco

This action was prosecuted by the heirs at law of John W. Runnels, deceased, to recover damages from the defendant for having unlawfully occasioned his

The following are the facts: Defendant operates a double track line of electric street railway along Haight Street, in the city and county of San Francisco. Haight Street extends easterly and westerly and is bisected by Pierce Street and to the west of Pierce Street by Scott Street, distant 412% feet therefrom. ■ The bisecting • streets cross Haight Street at right angles. The accident occurred on the evening of January 4, 1912, near 6 o’clock P. M. It was dark. Deceased, who was a teamster, at the end of his day’s work, was driving a gentle team of horses attached to a heavy sand wagon, coming from the north on Pierce Street to cross Haight Street. He had proceeded on his way until his horses were upon the southerly tracks of the electric line on Haight Street, when apparently he became aware of danger from an approaching ear of defendant. He urged his horses forward. They cleared the track. The car struck the wagon and the impact hurled Runnels from his seat to the street, which striking he sustained injuries occasioning his death. The 'car was a heavy electric car, twenty minutes behind time, making its last trip for the day, and being driven at a high and unlawful rate of speed, some twenty-five or thirty miles an hour. As has been said, it was dark and also a “little bit foggy. ’ ’ The headlight of the car was not lit. No gong nor bell was sounded. But, on the other hand, it appears that the interior of the car was illuminated by the usual electric lights and that the car in its progress made a loud roaring or rumbling noise. From his seat on the wagon as he moved into Haight Street the deceased could have seen the car a block away, although immediately upon entering the street his view would have been somewhat interfered with by trees, telephone and trolley poles, but when clear of these his range of vision was uninterrupted. A lady standing on the northerly curb of Haight Street some little distance to the west of Pierce Street herself heard and observed the approaching ear and noticed also that it was traveling at great speed. She further testifies that when she first noticed the car it was between Pierce and Scott Streets, but nearer to Pierce Street

Appellant in thus urging that under these facts the evidence demonstrates the contributory negligence of the deceased as matter of law accepts to the full the indisputable rule and doctrine of this court often declared and stated with some elaboration in Zibbel v. Southern Pac. Co., 160 Cal. 237 , [ 116 Pac. 513 ], Its contention, however, is that the facts in evidence from the lips of plaintiffs’ witnesses demonstrate beyond peradventure that the deceased did not exercise due care in placing himself in a position of danger from which he met his death. Herein it is conceded that the deceased’s conduct when confronted by his imminent and deadly peril is not to be construed as in the slightest evincing this lack of care.

The bases of appellant’s argument are these: that deceased could have seen the approaching ear from a place of safety; that he could have heard the approaching car from a place of safety; that in thus hearing and seeing the approach of the car he should have known that it was traveling at an excessive rate of speed and was not going to stop at the intersecting street. He should have known this, it is insisted, because the lady standing on the northerly curb of Haight Street and farther away from the car than was the deceased did see and hear and realize these things and, as has been said, concluded that it was unsafe for her to essay foot travel across the street until the car had passed. To these facts appellant adds the legal argument that the duty of the driver • of a vehicle in crossing a street railroad track has become standardized, and that this duty requires him to look and listen before attempting to make the crossing. Furthermore,

As to the legal propositions thus advanced it must first be said that the duty of a foot-passenger or of the driver of a vehicle in crossing the tracks of a street railroad has been standardized no further than is involved in the familiar declaration of law that in so doing he must exercise reasonable care for his own protection. The duty of stopping, looking, and listening made incumbent upon one about to cross the right of way of a steam railroad is not the rule governing the rights of foot-passengers and vehicle drivers in venturing upon, crossing, or using the tracks of a street railroad. The duty of such is no higher than or different in law from the duty of the company operating the electric car saving in the one particular so often pointed out that because the car is confined to its tracks, vehicles and foot-passengers must give way to clear its passage. (Shea v. Potrero etc. Co., 44 Cal. 414 ; Swain v. Fourteenth St. R. R. Co., 93 Cal. 184 , [ 28 Pac. 829 ]; Driscoll v. Market St. R. R. Co., 97 Cal. 566 , [ 33 Am. St. Rep. 203 , 32 Pac. 591 ]; Clark v. Bennett, 123 Cal. 278 , [ 55 Pac. 908 ]; Wahlgren v. Market St. Ry. Co., 132 Cal. 664 , [ 62 Pac. 308 , 64 Pac. 993 ]; Schneider v. Market St. Ry. Co., 134 Cal. 488 , [ 66 Pac. 734 ]; Hamlin v. Pacific Elec. Ry. Co., 150 Cal. 776 , [ 89 Pac. 1109 ]; Scott v. San Bernardino Valley Co., 152 Cal. 610 , [ 93 Pac. 677 ]; Lawyer v. Los Angeles Pacific Co., 161 Cal. 53 , [ 118 Pac. 237 ].) Nor yet is it true that one about to cross the tracks of a street railroad is not entitled to act upon the belief that the operatives of the street railroad will upon their part obey the law and observe due care and caution. Indeed, the contrary is the rule, and it is needful to do no more than to quote briefly from Scott v. San Bernardino Valley Co., supra, as follows: "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

The judgment and order appealed from are therefore affirmed.

Melvin, J., and Lorigan, rJ., concurred.

Hearing in Bank denied.