Michael v. Key System Transit Co.

Appellant sustained certain personal injuries while riding in an automobile driven by one Harold Wagner on July 31, 1926, when the automobile collided with a street-car owned and operated by respondent. The collision occurred about 1:30 o’clock in the morning on East Fourteenth Street near Ninety-sixth Avenue in the city of Oakland. The street-car involved in the collision was at the time of the accident standing on the south track of respondent’s car line in the vicinity of one of its barns. It had been moved out of the car barn and on to the street approximately 45 minutes prior to the accident, but had been at the place where the accident occurred only about 15 minutes. The street-ear had been moved out so that respondent could properly handle and repair cars at the barn. It was necessary to run ears back and forth between the track on East Fourteenth Street and the car barn. This was done late at night or early in the morning when the traffic on the street was light. At the time of the accident Harold Wagner was operating the automobile in question along East Fourteenth Street in the direction of San Leandro at about twenty-four or twenty-five miles an hour and for some distance had been straddling the south street-car track. The street on both sides of the car tracks was clear and unobstructed, and if the automobile had been driven on that part of the street customarily used for vehicular traffic, the collision would not have occurred. The street-car was standing parallel with the sidewalk and in the same position occupied by it when operating along East Fourteenth Street in the direction of San Leandro. Wagner testified that his headlights were adjusted so that he was unable to see clearly any object more than ten or twelve or ten or fifteen feet ahead of him; that when he first saw the

The complaint _sets out three separate causes of action charging negligence. The first cause of action alleges that the street-car at the time of the collision was unlighted and unguarded and by reason of the failure of defendant corporation to properly light or otherwise guard the street-car it was not discernible to persons driving vehicles, and that by reason of its indiseernibility the automobile was caused to collide with it. The second cause of action charges negligence, specifying that negligence to be that defendant had been accustomed to leave unused cars owned and operated by it standing on the tracks on East Fourteenth Street for several hours each night and particularly on the night that the accident took place, and that the street-car with which the automobile collided had been standing upon the street in accordance with such custom for a number of hours, and that it was thereby an obstruction and an impediment to traffic and constituted a menace to the safety of persons operating automobiles on East Fourteenth Street and was a nuisance. The third cause of action charges negligence in that the street-car was permitted to stand on the. street for an unreasonable length of time and was not properly lighted or guarded and that this was a proximate cause of the collision. The jury was fully and correctly charged with respect to the first and third causes of action and no contention is made by appellant that the evidence is insufficient to support the verdict in favor of defendant. It is merely with respect to the second cause of action that complaint is made and with which we are concerned.

In support of her second cause of. action appellant offered to prove certain facts to which objection was sustained and which ruling is assigned as error. The offer is as follows: “We offer at this time, if the court please, to show by this witness (Futardo) that the defendant, Key

We think it immaterial under the facts disclosed whether respondent on previous occasions or habitually stored its ears on the street, for to entitle one to recover for the negligence of another that negligence must have been the proximate cause of or must have proximately contributed to the injury. This is so even though negligence arises because of the violation of a law or an ordinance (Arrelano v. Jorgensen, 52 Cal. App. 622 [ 199 Pac. 855 ] ; Berges v. Guthrie, 51 Cal. App. 547 [ 197 Pac. 356 ]; Williams v. Southern Pacific Co., 173 Cal. 525 [ 160 Pac. 660 ]). So, also, where the negligence results from maintaining a nuisance, the nuisance must contribute to the injury. It cannot be said that the mere fact—if it be a fact—that respondent permitted its cars to remain at approximately the same position of the car in question at the time of the accident on other occasions had any connection whatever with the injury suffered by appellant. Appellant sustained her injuries by being driven into a particular standing car on the morning of July 31, 1926. There could be no causal connection between that injury by striking that car at that particular time and the maintenance of other cars at approximately the same place on other nights prior to the accident. While it is well settled that the violation of an ordinance is conclusive evidence of negligence in this state (Scragg v. Sallee, 24 Cal. App. 144 [ 140 Pac. 706 ]),

Appellant urges that the court erred in refusing certain instructions to the jury proposed by her on the theory embraced in her second cause of action, which is stated in her brief to be in short this: “That by keeping the street car in the position which it occupied, the defendants were maintaining a public nuisance; that such maintenance of a public nuisance constituted negligence per se and that if this maintenance of a nuisance were established and the plaintiff was free from contributory negligence, she was entitled to a verdict as a matter of law.” Appellant contends that instructions proposed covering this theory were refused, and that no instructions were given involving the element of nuisance. It is true the court did refuse several instructions requested by appellant on this question, appellant’s particular objection being that the court refused to instruct that permitting cars to stand or be stored on the street constituted a nuisance and was negligence as a matter of law and no further proof on plaintiff’s part was required. The court, however, gave the following instructions, which correctly state the law applicable to the facts and which sufficiently enlightened the jury on the question of nuisance as here involved: “I further instruct you that anything which unlawfully obstructs the free passage or use in the customary manner of any street or highway, is a, public nuisance. If you believe from the evidence that the defendant Key System Transit Company, unlawfully obstructed the public highway by permitting its street-cars to remain upon the same for an unrea

We are not in accord with appellant’s contention that a street-car standing on its tracks, if so left for not an unreasonable time and being properly lighted or guarded, constitutes negligence per se; nor that the street-car in question, which was left standing on the tracks where the accident occurred for but a few minutes and the street on both sides of the car tracks used for vehicular traffic being clear, constitutes an obstruction or renders the street dangerous and unfit for'use by the traveling public.

At the time of the accident and for a long time prior thereto the respondent company maintained its tracks and equipment and operated its cars on East Fourteenth Street by authority of franchises from the county of Alameda and the city of Oakland. It was not only expressly authorized to use the streets, but was required to do so under its franchises. These facts place respondent in a different position from a private individual using the streets. Whether respondent should have been permitted to leave its cars standing on its tracks in the street when not in use was a matter for determination by the authorities. As was said in George v. Los Angeles R. Co., 126 Cal. 362 [ 77 Am. St. Rep. 184 , 46 L. R.

Appellant has cited a number of cases where the acts of individuals have been held to constitute nuisances per se, but in these cases the obstructions were unlawful, the California cases cited being Colgrove v. Smith, 102 Cal. 220 [ 27 L. R. A. 590 , 36 Pac. 411 ], where a contractor unlawfully dug trenches without authority from the city; McKune v. Santa Clara V. M. & L. Co., 110 Cal. 480 [ 42 Pac. 980 ], where a mill operator maintained an unauthorized obstruction on the highway; Stockton Automobile Co. v. Confer, 154 Cal. 402 [ 97 Pac. 881 ], where an unlawful obstruction to the free use of the highway was erected, and Monsch v. Pellissier, 187 Cal. 790 [ 204 Pac. 224 ], wherein it is said that gratings which were apparently in a condition which might render them in their character “of the nature of a nuisance,” the defendant who had or was charged with knowledge of their condition cannot escape liability upon the ground that she had not received statutory notice of such nuisance. We fail to see the applicability of these authorities, as the facts are not analogous to those in the present case. In Chicago Northwestern R. R. Co. v. Prescott, 59 Fed. 237 [ 23 L. R. A. 654 ], cited by appellant, in which case a railroad train obstructed a cross street and .injury resulted to a person endeavoring to pass, the court uses this language: “And, according to well-established rules, the issue as to whether a street was rightfully obstructed should be submitted to the jury, if the circumstances attending the blockade were such that reasonable persons might entertain different views as to whether the action of the company was justifiable.” So in the present case the court properly submitted this question to the jury, and as the evidence is sufficient to support the verdict in favor of defendant, the judgment should be and it is affirmed.

Tyler, P. J., and Cashin, J., concurred.