Collom v. Bloch

This is an action for damages resulting from the death of John F. Collom caused by having been struck by an automobile owned and operated by the defendant. The cause was tried to the jury and resulted in a verdict for the plaintiffs, as heirs of the deceased, in the sum of $10,000. From the judgment the defendant has appealed, and presents the record on a bill of exceptions.

The facts of the ease which appear from the evidence, and which are substantially without conflict, are that the deceased and his daughter were on the south side of Post Street, near the corner of Grant Avenue, in the city and county of San Francisco, at about 6:30 P. M. of the seventh day of September, 1920. At that time a street-car approached from the west upon the southerly tracks maintained by the company and stopped on the westerly side of the westerly curb line of Grant Avenue. The deceased walked into the street with his daughter and helped her upon the rear platform of this street-ear. He then proceeded around the back of the car, going in a northerly direction toward the northerly sidewalk of Post Street. The car started on its course easterly on Post Street, and the daughter remained on the rear platform apparently about to pay her fare, but keeping her view directed to her father’s progress across the street. "When he reached the south rail of the northerly tracks of the company he looked to his right, or easterly, and apparently saw the automobile of the defendant approaching on these north tracks and started to run to the sidewalk in front of the Shreve Building, which is located on the northwest corner of that intersection. The daughter testified that from the rear platform of the street-car she saw the automobile of defendant approaching on the northerly street-car tracks about 120 feet east from where her father stood, that it was then “tearing up the street, and that it swerved to the left and then swerved to the right again and followed him right up on the sidewalk,” and that at the time Post Street was clear of all other vehicle traffic. She last saw her father as he had one foot on the sidewalk. She immediately had the street-ear stopped and went to her father and found him lying under the radiator of defendant’s automobile with his head toward the Shreve Building at a point directly west of the door of that buiiuing, which point is stipulated to be

Upon this appeal the appellant relies upon three points, first, the insufficiency of evidence of negligence on the part of the appellant; second, contributory negligence on the part of the decedent; and, third, error in the instruction relating to the last clear chance.

[1] (1) The mere statement of the facts of the case is a sufficient answer to the claim that the evidence is insufficient to show negligence on the part of the appellant. If it is true, as the appellant testified, that he was proceeding at a rate of 15 miles an hour going up grade and on a street clear of traffic, and if it is true that he applied all his brakes when 18 feet away from the point where the deceased started to run, it is evident that he released his brakes and accelerated his speed immediately after that time in order to traverse the are which he is admitted to have traveled in order to strike the deceased at a point on the sidewalk six feet beyond the curb. The only other explanation of the cause of the accident is that the appellant was traveling at a very much higher rate of speed than he has admitted. Either of these two conclusions unmistakably charges the appellant with negligence. The decedent’s daughter testified that the appellant was proceeding at a high rate of speed, and, of course, the jury could have believed her testimony and rejected that of the appellant and his companions. The mere fact that these witnesses placed the speed of the machine at precisely the legal rate for that section might in itself lead the jury to disbelieve their testimony. In addition to this, the physical facts as to what happened after the appellant saw the deceased in his place of danger was persuasive evidence from which the jury might have inferred that the appellant was proceeding at a much greater rate of speed than he testified or that he was carelessly operating his machine. In any event, there is a conflict in the testimony in this respect which is substantial. Under such cir

(2) The second proposition that the decedent was guilty of contributory negligence does not seem to be urged seriously by the appellant. Eliminating for the moment the question of conflict in the evidence and considering the testimony of the appellant and his companions alone, it would fall far short of constituting a case of contributory negligence per se. Taking the testimony of these witnesses, it is that the deceased came from the rear of the car and stepped upon the northerly street-car tracks, looked to his right, and saw the automobile approaching some 45 or 60 feet away. He then started to run toward the sidewalk manifestly to seek a place of safety. If we take the conflicting testimony we find that the deceased saw the approaching automobile when it was something like 120 feet away and he then started to run to a place of safety. [2] In the absence of some statutory declaration to that effect, this, court cannot say that as a matter of law every pedestrian is guilty of contributory negligence who attempts to cross a public street beyond an intersection when he sees an automobile approaching some 45 or 50 feet distant. [3] The very fact that the statute does require motor vehicles to reduce their speed to 15 miles an hour at street intersections when the driver’s view is obstructed and in a business district (and the court will take judicial notice of the fact that both of these conditions existed at the point of the collision: Varcol v. Lee, 180 Cal. 338 [ 181 Pac. 223 ]; Dewhirst v. Leopold, 194 Cal. 424 [ 229 Pac. 30 ]), may be in itself enough to justify a pedestrian in assuming that he may cross the street in safety when the approaching machine is not less than 45 or 50 feet distant. (Mann v. Scott, 180 Cal. 550 , 554 [ 182 Pac. 281 ]; Haines v. Fewkes, 190 Cal. 477 , 478 [ 213 Pac. 490 ]; Burgesser v. Bullock’s, 190 Cal. 673 , 677 [ 214 Pac. 649 ].) [4] The question of contributory negligence in this case was clearly a question of fact which was properly submitted to the jury for determination.

(3) The appellant assigns but one instruction as error, the one relating to the last clear chance doctrine. The criticised instruction reads as follows: “If you believe that the said deceased found himself cither through fault on his part

[5] As to the first proposition, the criticism of the instruction as confined to the language used is undoubtedly good. Respondents’ answer is that it is not incumbent upon the court to cover all the essential elements of any particular issue of the case in one instruction. They point out, and properly, that the law governing the contributory negligence of the deceased and the difference between the remote and proximate causes of the accident was fairly and fully given to the jury in other instructions. It appears that throughout the instructions the jury were told that before the plaintiff could recover it must appear to their satisfaction that the deceased was without fault or negligence on his part which “may have contributed to the accident.” Contributory neglig'ence was then clearly defined, and the jury were further told that any failure on the part of the decedent to exercise ordinary care such as a prudent person would have used under the same circumstances should be treated as the proximate and contributing cause of his injury, and that if the deceased was in any manner guilty of the conduct which amounted to the absence of ordinary care and such conduct in any degree contributed to his death the plaintiffs .could not recover. It needs no citation of authority to say that all the instructions must be read together, and we have carefully read the instructions given covering this phase of the ease and are satisfied that the jury was fairly and fully

[6] As to the second point raised, it is undoubtedly true, as appellant argues, that the last clear chance doctrine does not apply where both parties are contemporaneously at fault down to the moment of the accident. (Young v. Southern Pac. Co., 189 Cal. 746 , 757 [ 210 Pac. 259 ].) Though this is the law, the question of so instructing the jury is purely academic in a case such as this where the facts wholly fail to support the principle. There is no conflict in the evidence that after the decedent found himself in a place of peril on the northerly street-ear tracks and in the direct path of the approaching automobile he ran rapidly toward the sidewalk seeking a place of safety, and the jury was permitted to assume that the course adopted by the decedent to reach a place of safety was the course which a reasonable man would have adopted under the same circumstances. Surely there is no testimony which would lead a court or jury to assume that a reasonable man should have done otherwise. If this is so, it must follow that the decedent was not guilty of contributory negligence down to the point of the accident, that is, when he stopped upon the sidewalk some six feet beyond the street curb. We should not be understood as approving the form of the criticised instruction, but we do hold that, reading the instructions as a whole, there was no prejudicial error in this case, but, on the other hand, we find that the jury was fairly and fully instructed on all issues of the case.

Judgment affirmed.

Langdon, P. J., and Sturtevant, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 22, 1925, and the following opinion then rendered thereon:

Appellant's petition to have the above-entitled case heard and determined by this court after judgment in the district court of appeal is denied. We do not, however, adopt the conclusion that the giving of other correct instructions upon the subject of contributory negligence cured the error in the quoted instruction. [7] As it appears from the evidence without substantial conflict that from the moment the deceased found himself in a position of peril he made every effort to escape therefrom, the omission of this element from the instruction was not prejudicial.

All the Justices concurred.