Wright v. Los Angeles Railway Corp.

In this action plaintiff sought to recover a judgment for damages alleged to have been suffered by her when an automobile which she was driving in the city of Huntington Park was struck by a streetcar owned by the defendant railway corporation and operated by defendant Sherman.

It was alleged in the complaint that the proximate cause of the collision was the negligent operation of the streetcar by the defendants. By the answer the charge of negligence was denied and the issue of contributory negligence of plaintiff was specifically raised. At the close of plaintiff’s case, and again at the close of the trial, the defendants’ motions for a nonsuit and for a directed verdict, respectively, were denied. The jury returned a verdict in plaintiff’s

At the time of the accident here concerned, there was in effect an ordinance of the City of Huntington Park, by the provisions of which it was made unlawful for any streetcar to be operated at a speed greater than 15 miles per hour in a business or a school district. The accident happened early in the afternoon of October 12, 1936, at the intersection of Pacific Boulevard and Fifty-seventh Street, which latter thoroughfare runs east and west in said city. The district along Pacific Boulevard from Fifty-sixth Street southward to Fifty-seventh Street is a business district; from Fifty-seventh Street to Fifty-eighth Street is a school zone, and there is a “school crossing” sign on the south side of the intersection of Pacific Boulevard and Fifty-seventh Street. On the day of the accident the defendant corporation owned and, through defendant Sherman, was operating an electric streetcar upon its right of way, which extended upon- and along the center of Pacific Boulevard in a northerly and southerly direction. Shortly before the accident happened, the streetcar was being operated in a southerly direction in the block immediately north of the intersection of the boulevard and Fifty-seventh Street. At the same time, plaintiff was operating her automobile in a southerly direction along the west side of Pacific Boulevard, on a portion of the street which runs parallel with the streetcar tracks. When plaintiff reached Fifty-seventh Street she assertedly stopped at the south end of the safety zone, after which she turned her automobile in an easterly direction across the southbound tracks of the electric railway, at which point the collision occurred,—the left side of the automobile having been struck by the streetcar.

The record shows that the evidence was substantially conflicting in each of several respects. The version given by defendant Sherman as to the speed and position of the respective vehicles, and of his acts as well as those of plaintiff, immediately prior to and at the time of the accident, differs in several material respects from the recital of plaintiff in that regard. The former testified that when the streetcar was about half a block north of Fifty-seventh Street he saw the automobile traveling south on Pacific Boulevard midway of a safety zone which was located near the intersection of Fifty-seventh Street; that at that time the street

There was evidence adduced with respect to the position and speed of the respective vehicles, which in part tended to support the version of the accident as related by de

The principal contention of the appellants is that plaintiff was contributorily negligent. Or, otherwise stated, they contend that, at or about the time of the accident, the conduct of plaintiff was not that of an ordinarily prudent person, under the same circumstances. However, it is generally conceded that, on approaching an intersecting street, the duties of a streetcar motorman and those of the driver of an automobile which is about to cross the streetcar tracks at such intersection, are reciprocal and that each is required to approach the intersection with due regard for the rights of the other. (Smith v. Southern Pac. Co., 201 Cal. 57 [ 255 Pac. 500 ] ; Shipley v. San Diego Elec. Ry. Co., 106 Cal. App. 659 [ 289 Pac. 662 ].) In that regard it was said in the case entitled Aungst v. Central California Traction Co., 115 Cal. App. 113 , 116 [ 1 Pac. (2d) 56 ]: “ . . . ‘that where both street car companies and automobiles have the right to use the public street, the right of each must be exercised with due regard to the rights of the other, and in such a manner as not unreasonably to infringe upon the rights of the other’. ‘While street cars must run upon the tracks provided for them, they have no absolute or pre-eminent right of way over intersections, but must use the same with due regard to the safety and rights of the general public.’ (O’Connor v. United Railroads, 168 Cal. 43 [ 141 Pac. 809 ].) ” (Emphasis added.)

In support of her contention that, as a matter of law, her conduct in the premises could not properly be declared to constitute contributory negligence, respondent directs attention to that which was said in the case entitled

The case entitled Bate v. Los Angeles Ry. Corp., 30 Cal. App. (2d) 604 [ 86 Pac. (2d) 856 ], involved an accident which occurred between a streetcar and an automobile at an intersection in a business district. There, also, according to his testimony, the plaintiff, who was traveling in a northerly direction, made a left turn across the streetcar tracks, after he had seen a southbound streetcar approaching about two-thirds of a block away, and where there was other traffic at the intersection which called for the attention of the driver of the automobile. In that case the court said:

“The issue of alleged contributory negligence of the driver of an automobile is ordinarily to be left to the determination of the jury and it may not be taken from the jury by the court if the circumstances in evidence are such that reasonable minds might differ on the issue. Mr. Bate entered the intersection first and he had the right to assume that the motorman of the street car would obey the law and operate the car in a proper manner. The law permitted him [Mr. Bate] to make a left turn if he could do so ‘with reasonable safety’ (Vehicle Code, sec. 544) . . . The jury might reasonably have concluded that an ordinarily prudent driver would have made the turn as did Mr. Bate. He noticed nothing unusual about the operation of the car but even if he had noticed its undue speed, as stated in Runnels v. United Railroads, 175 Cal. 528 , 532 [ 166 Pac. 18 ], ‘he was not in law bound to believe that the car though traveling at undue speed when he saw it one-half a block

or more away, would continue to violate the law and not check its speed as it drew near an intersecting street’. . . . We know of no rule which makes the act of the driver of an automobile in going in front of an approaching car negligence as a matter of law regardless of the attendant circumstances. On the contrary it has been frequently held that in such cases the issue of negligence of the operator of the automobile ordinarily should be submitted to the jury. (Scott v. San Bernardino Valley etc. Co., 152 Cal. 604 [ 93 Pac. 677 ] ; Bresee v. Los Angeles Traction Co., 149 Cal. 131 [ 85 Pac. 152 , 5 L. R. A. (N. S.) 1059 ]; Cowan v. Market Street Ry. Co., 8 Cal. App. (2d) 642 , [ 47 Pac. (2d) 752 ]; Hoff v. Los Angeles Pac. Co., 158 Cal. 596 [ 112 Pac. 53 ] ; Ring v. Los Angeles Ry. Corp., 116 Cal. App. 93 [ 2 Pac. (2d) 404 ]; Commonwealth Bonding etc. Co. v. Pacific Railway Co., 42 Cal. App. 573 [ 184 Pac. 29 ].) The words of the court in Ross v. San Francisco-Oakland T. Railways Co., 47 Cal. App. 753 , 759 [ 191 Pac. 703 ], are appropriate in the present situation: ‘But a traveler may cross an electric street railway track in front of an approaching car which he sees and hears and not be negligent. If in view of his distance from the car, the rate of its speed, and all other circumstances of the event, a reasonably prudent man would accept the hazard and undertake to cross the highway, a traveler may do so) and the propriety of his conduct is ordinarily a question for the jury.’ ...” (Emphasis added.)

In the instant case, as in the Bate case, plaintiff was traveling at a moderate rate of speed. If, in accordance with her testimony, it was true-—and the jury believed it was— that a very short time before she attempted to make the turn into the intersection, she had observed the streetcar a block away from her, she could not have been charged with the knowledge that it might travel the length of the next block at a high or unlawful rate of speed. Under the facts of this ease, the jury might well have found that plaintiff reasonably could have relied on the belief that the streetcar was traveling at a lawful rate of speed, and that there was no danger to be expected from a streetcar which was a block away at the time when plaintiff was preparing to make the left turn. Whether she acted reasonably under those circumstances was a question of fact for the jury.

But, as hereinbefore has been indicated, in the instant case, the evidence was conflicting in each of several material particulars and the jury was entitled to believe either the evidence adduced on behalf of the defendants, or that which was offered by plaintiff. (Hinkle v. Southern Pac. Co., 12 Cal. (2d) 691 [ 87 Pac. (2d) 349 ].) If the jury believed that defendant Sherman was traveling at a rate of speed in excess of 15 miles an hour,—and according to his own testimony he was so traveling—the defendants’ negligence was established. The violation of an ordinance or statute is negligence per se. (Hurtel v. Albert Cohn, Inc., 5 Cal. (2d) 145 [ 52 Pac. (2d) 922 ] ; Kellner v. Witte, 133 Cal. App. 231 [ 23 Pac. (2d) 1045 ].) Not only did defendant Sherman testify that the streetcar was traveling at a rate of speed which, it was evident, was prohibited by the ordinance, but also that he was watching the automobile from the time he first saw it to “see what move it was going to make”, and that he did not slacken the speed of the streetcar while he was watching the automobile,—although it was shown that during that time he was operating the streetcar through a business district of the city, and was about to approach an intersection, immediately beyond which was a school zone.

The record herein shows that the trial court denied the motion for a directed verdict on the ground that there was a sufficient conflict in the evidence for the case to go to the jury. There was no error in that ruling. On the other hand, what was said by this court in the recent case

The appellants also contend that the trial court erred in instructing the jury that the provisions of the city ordinance were applicable to a streetcar operated by appellant corporation upon its own private right of way. In that regard, it may be noted that in the case entitled Simoneau v. Pacific Elec. Ry. Co., 166 Cal. 264 , 269 [ 136 Pac. 544 , 49 L. R. A. (N. S.) 737 ], it was said: “It is, of course, well settled that a city may by a general municipal ordinance prescribe reasonable conditions and regulations under which street railroad companies shall operate their cars over or across the streets of a city, including the rate of speed, ...” (Emphasis added.) Ordinances regulating the speed of trains and streetcars within city limits are proper police regulations, made in the interests of the general welfare. (See Switzler v. Atchison etc. Ry. Co., 104 Cal. App. 138 , 152 [ 285 Pac. 918 ].)

Appellants make the further contention that the streetcar tracks herein concerned are utilized for “interurban” streetcar service and that since the right of way on which they are laid is unpaved (except at street intersections) and therefore is open to other vehicular traffic only at such intersections, the “stop, look and listen” rule of caution pertaining to a steam railroad should have been applicable to respondent herein. Although the streetcar was operated between the city of Los Angeles and the city of Huntington Park, it appears to have been operated as an ordinary streetcar which made local stops while traveling through the city. However, the question whether the rule was applicable does not become material, in the instant

The final contention made by appellants is that the court erred in instructing the jury on the doctrine of “last clear chance”. It is not improper to instruct the jury on the doctrine of “last clear chance” when, on any valid

We find no error in the record with respect to either the giving of certain instructions objected to by the appellants, or in the refusal to give certain others requested by them.

The judgment is affirmed.

Rehearing denied.