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Cuneo v. United Railroads

59 Cal. App. 794 Court First Appellate District, Division One. Decision date 1922-10-03 Docket Civ. No. 4070 English

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p. 794
[Civ. No. 4070.
First Appellate District, Division One.
October 3, 1922.]
ANTONE CUNEO et al., Respondents, v. UNITED RAILROADS OF SAN FRANCISCO (a Corporation), Appellant.

Headnote

[1] Negligence—Driving of Motor-truck upon Street-car Tracks —Collision With Bunaway Electric Car—Contributory Negligence.—Judgment affirmed upon the authority of None v. United Railroads, 53 Cal. App. 512 .
APPEAL from a judgment of the Superior Court of San Mateo County. Benj. K. Knight, Judge Presiding. Affirmed.
The facts are identical with those stated in Noce v. United Railroads, 53 Cal. App. 512 .
Wm. M. Abbott, K. W. Cannon and Ivores R. Dains for Appellant.
A. P. Black and Black & Black for Respondents.

This appeal is by the defendant from a judgment in the plaintiff’s favor for the sum of one thousand dollars damages for the destruction of an automobile truck through a collision with an interurban car.

This case is as to the facts of said collision identical with the case of Noce v. United Railroads, 53 Cal. App. 512 [ 200 Pac. 819 ], except that said cause was tried before a jury, while the present action was tried by the court without a jury. The former case was reversed for an erroneous instruction to the jury, hut as to the question of the negligence of the defendant and the absence of contributory negligence as a matter of law the decision in that case was in favor of the plaintiffs. The reasoning and conclusions of this court as to these questions are applicable to the case

p. 795
at bar, and a petition for rehearing in that case having been denied by the supreme court, we deem it conclusive of the instant case. For the reasons therein stated the judgment herein is affirmed.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 1, 1922.

All the Justices present concurred.

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