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District Court of Appeal, First District, Division 1, California.

GORE v. MARKET ST. RY. CO. et al.a1

Civ. 8816.

Decided: November 30, 1934

William M. Abbott, Walter H. Linforth, and William M. Cannon, all of San Francisco, for appellants. Ford & Johnson and Fletcher A. Cutler, all of San Francisco, for respondent.

An action to recover damages for personal injuries sustained by plaintiff, who was struck by a street car operated by defendants. She averred that her injuries were due to defendants' negligence. Defendants denied any negligence on their part, and alleged that the injuries were proximately caused by plaintiff's contributory negligence. The jury found for the plaintiff, and from the order denying the motion of defendants for judgment notwithstanding the verdict the defendants have appealed.

They claim that the evidence supports only the conclusion that they were using due care and that plaintiff was guilty of contributory negligence.

The accident occurred about 7:45 o'clock p. m. on August 24, 1929, at the intersection of Fulton street and Fifteenth avenue in San Francisco. There was a street light suspended from a trolley pole on the northwest corner of the intersection. The car was proceeding east along Fulton street at a speed variously estimated at between 25 and 15 miles per hour. About 10 feet west of the intersection and immediately south of the company's double tracks along Fulton street was situated a safety station approximately 55 feet in length. The distance from the easterly curb line of Sixteenth avenue on the west to the west end of the safety station was about 215 feet, and Fulton street was 55 feet in width between the curbs. Plaintiff testified that when she arrived at the northeast corner of the intersection the car was about two blocks distant; that she crossed to the northwest corner, thence walked south across McAllister street with the intention of boarding the car at the safety station; and that the car was then about half a block away. As she started to cross, she held up her hand as a signal and kept it in that position. When she reached the track on which the car was proceeding, she was struck and knew no more. There was a conflict in the evidence as to the course pursued by plaintiff. One witness testified that she crossed the intersection diagonally from the northeast corner to the place where she was struck. The motorman claimed that although he was looking ahead constantly, he did not observe her until the car was about 15 feet from the point of collision, and that he immediately reversed the power and put on the brakes, but was unable to avoid the accident; further, that the car, going at the speed it was moving, was brought to a stop within 25 to 30 feet. There was some dispute as to the point of collision and the place where the car stopped. Plaintiff testified that it was not dark at the time and, according to the conductor, who was standing in the rear right-hand door of the car looking ahead from the time it passed Sixteenth avenue, he could at all times see the safety station, and that there was no one waiting there; further, that the car slackened speed as it approached the corner to about 10 or 15 miles per hour, and within 10 or 15 feet from the point where its speed was first slackened it was brought to a stop in the intersection. There was likewise a dispute as to whether the speed of the car was slackened before the power was reversed.

It is clear that the plaintiff upon giving the usual signal that she wished to board the car–and which she testified was continued up to the time she was struck–anticipated that the motorman would stop at the place provided for taking on passengers and where cars customarily stopped upon signal. If the motorman observed her and the signal–which facts the jury might reasonably infer from all the testimony–then as a reasonable man he must have known that she relied upon the custom of the company to stop at the safety station when apprised that persons wished to board its cars. The mere fact that a person attempts to cross a street railway track when a car is seen approaching does not of itself constitute contributory negligence [Flach v. Fikes, 204 Cal. 329, 267 P. 1079]; and if, in view of his knowledge of the custom of the company to stop its cars at the particular place, his distance from the approaching car, the rate of its speed and other circumstances, a reasonably prudent person would have undertaken to cross, negligence in so doing may not be imputed [Simoneau v. Pacific Elec. Ry. Co., 166 Cal. 264, 136 P. 544, 49 L. R. A. (N. S.) 737]. It has also been held that such circumstances may require the motorman to anticipate that persons will ignorantly place themselves in a position of danger; and a settled custom to stop at a particular place becomes a rule of practice upon which the public has a right to rely to a reasonable extent, and a departure therefrom is an element in determining the question of negligence. Ross v. Railways Co., 47 Cal. App. 753, 191 P. 703. Plaintiff had boarded the car at this point frequently and knew of the practice of the company; and we cannot say that she was not justified under all the circumstances in assuming that the car would be stopped in the usual way and did not realize the contrary until too late to save herself.

As urged by defendants, the facts of the present case resemble those in Anderson v. Market St. Ry. Co., 116 Cal. App. 282, 2 P. (2d) 529; and that decision might control were it not that in the present case there is evidence that defendants, notwithstanding the assumed negligence of the plaintiff, had the last clear chance to avoid injuring her. As stated, the evidence shows sufficiently that any person with normal eyesight, looking ahead as the motorman testified, could have seen plaintiff's approach and her signal to stop. It further shows that a stop was made in from 10 to 15 feet from the point where the speed was first slackened, and we are satisfied that the jury might fairly have concluded from the evidence that, contrary to the motorman's testimony, he did see that plaintiff, anticipating that the car would stop upon her signal at the usual place, was about to cross the track on which it was traveling [Hoy v. Tornich, 199 Cal. 545, 552, 250 P. 565; Darling v. Pacific Elec. Ry. Co., 197 Cal. 702, 711, 242 P. 703], and that seeing her, he should have realized her perilous position at a time when by the exercise of ordinary care he might have avoided the accident [Chappel v. San Diego, etc., Ry. Co., 201 Cal. 560, 258 P. 73]. The doctrine of last clear chance applies as much to a case where the plaintiff is still unaware of the danger, and for that reason unable to escape, as to one where he is conscious of the danger from which he cannot escape by the exercise of ordinary care [Hoy v. Tornich, supra], and it applies notwithstanding the continuing negligence of the plaintiff under the same circumstances [Girdner v. Union Oil Co., 216 Cal. 197, 13 P.(2d) 915; Center v. Yellow Cab Co., 216 Cal. 205, 13 P.(2d) 918]. These questions were for the jury [Gilmore v. Los Angeles Ry. Corporation, 211 Cal. 192, 295 P. 41; Cunningham v. Los Angeles Ry. Co., 115 Cal. 561, 47 P. 452; Rasic v. Schultheiss, 121 Cal. App. 560, 9 P. (2d) 550], and we cannot say that their implied conclusions are unsupported.

Defendants contend, however, that the case was not tried on the theory that they had the last clear chance to avoid the injury and that the issue was not presented to the jury.

It might be inferred from the opening statement of counsel for plaintiff that such was not his theory of the case. Nevertheless he asked the court to instruct the jury that they might find on the issue. This instruction the court refused. What was said by counsel in their arguments to the jury the record does not show. Defendants urge that the proposed instruction was offered during the trial, and that under the provisions of section 607a of the Code of Civil Procedure, the offer came too late. This issue was not disclosed by the pleadings but developed by the evidence; consequently the offer was within the time limited by the section. It has been held that an issue is not waived by failure to ask for an instruction [Jones v. Goldtree Brothers Co., 142 Cal. 383, 388, 77 P. 939]; and had the court expressly but erroneously withdrawn the issue from the jury's consideration, they would not have been bound to follow such an instruction, and their verdict to the contrary would not be disregarded [O'Neill v. Thomas Day Co., 152 Cal. 361, 92 P. 856, 14 Ann. Cas. 970].

As stated, we are of the opinion that there was sufficient evidence to support a finding that defendants had the last clear chance to avoid the accident by the exercise of ordinary care. It follows that the offered instruction should have been given. The question was within the issues as disclosed by the evidence, and defendants as well as the plaintiff would have been entitled to an instruction requiring the jury to find thereon. Stein v. United Railroads, 159 Cal. 368, 113 P. 663. Under the circumstances the plaintiff should not be prejudiced by the error. Jones v. Goldtree Brothers, Co., supra; see, also, Ruppel v. United Railroads, 10 Cal. App. 319, 101 P. 803.

The verdict was fairly supported, and the record discloses nothing which would justify a reversal. The order is affirmed.


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