Opinion
Rehearing Granted Sept. 19, 1929
Appeal from Superior Court, City and County of San Francisco; Franklin A. Griffin, Judge.
Action by Betty Gackstetter, a minor, by John Gackstetter, her guardian ad litem, against the Market Street Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.
COUNSEL
Wm. M. Abbott, K.W. Cannon, and Walter H. Linforth, all of San Francisco, for appellants.
Vincent W. Hallinan and James J. Roach, both of San Francisco, for respondent.
OPINION
LAMBERSON, Justice pro tem.
On June 24, 1925, plaintiff, a girl, then about three years of age, was injured by one of the cars of the defendant corporation. The accident occurred about 4 o’clock in the afternoon on Hayes street, between Broderick and Divisadero streets, in the city of San Francisco. A verdict for the sum of $5,000 was rendered in favor of the plaintiff, and the appeal is by the defendants, Market Street Railway Company and L. McClelland, from the judgment entered upon such verdict.
The car was proceeding easterly on Hayes street under the operation of defendant McClelland, as motorman, and had stopped to let off passengers at Broderick street. It was then started towards the next street, Divisadero street, where a regular stop had to be made, according to the regulations of the defendant corporation. After traveling almost half way along the block, the motorman noticed the plaintiff and a little boy near a sand pile in front of a building under construction. The evidence is conflicting as to the exact position of the little girl immediately before the accident— the testimony of a woman spectator, who was standing near the point of collision, being that the little girl ran from the north side of the street and attempted to run across the street; that she was struck by the left side of the front fender, tossed across the fender to the right side of the car and onto the pile of sand, from which she rolled down under the wheels; and the testimony of the motorman being that she was on the south side of the street just off the curb a foot or so; that his car was running at the rate of about 7 or 8 miles per hour when he saw her, and that he did not exceed that rate between Broderick street and the point of the accident; that, when he first saw them, the boy and girl were standing near the sand pile, at a distance of about 1½ car lengths from the car. The girl started to run fast toward the car and toward the north side of the street, and instantly he sounded the gong, threw on the air, and reversed the car; that, when she started to run, she was about 20 feet away from the car; that she was struck by the right forward steps of the car at the very front corner; and that he found a piece of koverall cloth on the step after the accident, the cloth resembling the material of the garment which she was wearing.
The girl was seriously injured, the chief injury being in the legs, one of which was broken, and there being cuts and bruises on other parts of the body. The motorman stopped the car very suddenly and within a short distance after sounding the gong. The girl was found with her feet on the rail, lying close against the brake shoe immediately in front of the front wheel of the forward truck of the car, the wheel not having passed over any part of her body.
The complaint alleges that on the date of the accident there was in full force and effect Ordinance No. 1674 of the city and county of San Francisco, which provided in part that no person or corporation should operate any street car at a greater speed than 15 miles per hour within a certain area therein described, which area embraced the territory where the accident occurred. The complaint also alleges that the street car which struck the plaintiff was being operated at the time at a speed in excess of 15 miles per hour.
The testimony on behalf of the plaintiff as to the speed of the car was somewhat meager and lacks the exactness that should be present in a case of such serious nature. Valentine McDonnell, a policeman as a witness on behalf of the plaintiff, testified that he was seated in the rear end of the car reading a newspaper. The following examination occurred:
"Q. Now, do you remember the car proceeding across Broderick street and down Divisadero street prior to the time of the collision? A. Yes; I do.
"Q. Now, during that space— from the time it crossed Broderick street until the little girl was struck, at what rate of speed was the car being operated? A. Oh, it was going at a moderate rate of speed.
"Q. What do you call a moderate rate of speed in miles per hour? A. I would call a moderate rate of speed between 20 and 25 miles per hour.
"Q. Was it going about that speed at the time you mention? A. Well, to the best of my knowledge."
The witness heard some one scream; then the sound of the gong; then all of a sudden the car came to a stop. He jumped off and ran to the front, where he found the plaintiff in the position heretofore stated. He testified that the car was stopped very quickly.
The jury heard the conflicting testimony of this witness and the motorman, and had the witnesses before them where they could note their bearing, their tone of voice, and the other elements of personality which are so essential in the courtroom, and particularly before a jury. In the case of Charves v. Terminal Railways, 44 Cal.App. 221, 186 P. 154, the court said:
"What the actual rate of speed of the car was at the time was a question of fact for the jury, and whether or not the rate of speed which the jury found said car to have been actually running at said time was an undue rate of speed for cars to be operated upon said Adeline street, were also questions of fact for the jury. Burr v. United Railroads, 163 Cal. 663, 126 P. 873; Ellis v. Central Cal. Traction Co., 37 Cal.App. 390, 174 P. 407."
Where a conflict of testimony exists, it is for the jury to judge the credibility of the witnesses, and the weight, effect, and probative force to be given their testimony and the duty of the reviewing court on appeal is to construe the evidence so as to support the verdict, if it may be done so reasonably; that is to say, to accept as true such evidence as tending to sustain the verdict, unless it be inherently incredible, and to reject as untrue those portions which conflict therewith. Truitner v. Knight, 83 Cal.App. 655, 257 P. 447.
The violation of an ordinance is negligence per se. Baillargeon v. Myers, 180 Cal. 504, 182 P. 37, 39; King v. San Diego Electric Railway Co., 176 Cal. 266, 168 P. 131; Mann v. Scott, 180 Cal. 550, 182 P. 281. In Baillargeon v. Myers, supra, the court said:
"In view of the conflict in the evidence in this behalf, we must assume in favor of the judgment that the jury found that at the time of the collision the ordinance was being violated by the chauffeur, and that the condition of the traffic was not such as to excuse such violation. This being so, the defendant was guilty of negligence per se, and is liable for the injury to the plaintiff, if such negligence was the proximate cause of the injury, and if the plaintiff was free from contributory negligence."
"It has been repeatedly declared by the Supreme Court of this state that the failure to perform a duty imposed by statute or municipal ordinance constitutes negligence. Siemers v. Eisen, 54 Cal. 418; Driscoll v. Market Street, etc., Ry. Co., 97 Cal. 553, 32 P. 591, 33 Am.St.Rep. 203; Bresee v. Los Angeles Traction Co., 149 Cal. 131, 85 P. 152, 5 L.R.A.(N.S.) 1059. But the omission to perform such duty must contribute directly to the injury; otherwise, however, illegal the act or omission thereof, in the abstract, no action for damages can be maintained thereon. McKune v. Santa Clara V.M. & L. Co., 110 Cal. 480, 42 P. 980." Fenn v. Clark, 11 Cal.App. 81, 103 P. 944, 945.
Upon this branch of the case we are of the opinion that the evidence is sufficient to sustain the findings of the jury as to defendants’ negligence in the operation of its car, and that such negligence was the proximate cause of plaintiff’s injury.
The point is made by defendants that the trial court erred in sustaining objections to questions by defendants on cross-examination of the witness McDonnell, who testified as hereinbefore related as to the speed of the car. The cross-examination was directed to a conversation had with such witness by a representative of the defendant corporation about two weeks after the accident. The question was asked: "Now, then, didn’t you at that time tell him that in your opinion the motorman made a fine stop and was not at fault?" Again: "Let me put it this way: Did you, at that time and place, say to Mr. Lewin that the motorman was not at fault?" And again: "Did you, at that time and place, state to Mr. Lewin that the motorman made a fine stop?"
Objection was made to each question, upon the ground that it was not an impeachment of anything testified to by the witness. The objections were properly sustained. The witness had previously testified that the car was traveling at a moderate speed, that he called 20 to 25 miles per hour a moderate rate, and that to the best of his knowledge the car was traveling at that rate.
Section 2051 of the Code of Civil Procedure provides that a witness may be impeached by contradictory evidence, and section 2052 of the same Code provides that a witness may also be impeached by evidence that he has made at other times statements inconsistent with his present testimony.
Before a witness may be impeached, it must be shown that the statements sought to be elicited are either contradictory or inconsistent with the statements he has previously made in his testimony. In this instance the statements sought to be brought out are not inconsistent with or contradictory of any other statements. The motorman might have acted in a very commendable manner, and with great promptitude and presence of mind, and have made a very fine stop; but his conduct at that moment would not serve to erase any acts of negligence which preceded, and which might have been found to have been the proximate cause of injury. A statement that the motorman made a fine stop and was not at fault would be simply a conclusion of the witness, and would not serve to enlighten the jury as to facts and conditions which the witness obviously had not observed.
In order to impeach a witness, by showing that he has made inconsistent statements, the impeaching testimony must appear to be plainly inconsistent with that already given; it is insufficient if the inconsistency appears only inferentially under such circumstances that an inference in favor of consistency might also be drawn. 27 Cal.Jur. 153; People v. Collum, 122 Cal. 186, 54 P. 589.
Defendants have taken exception to the refusal of the court to give the following instruction to the jury:
"In a case where the alleged negligence consists of an omission of duty suddenly and unexpectedly arising from a person walking or running either in front of the car upon the track without warning, or running into the side of the car, it is incumbent upon plaintiff to show that the circumstances were such that the motorman had an opportunity to become conscious of the facts giving rise to the duty, and a reasonable opportunity to perform it, before it can be said the motorman was guilty of negligence or the railroad company can be held liable on that ground. Of course, it is for you to say whether or not the little girl did walk or run in front of the car, or did walk or run into the side of the car."
The instruction was properly refused. The substance of the instruction was fully covered by other instructions given by the court. The court gave instruction No. IX, as follows:
"It is for the plaintiff to prove by a preponderance of the evidence that the defendant McClelland was negligent and careless in the operation of the car at the time of the happening of the accident referred to in the complaint. If the plaintiff has failed to prove this negligence by a preponderance of the evidence, then your verdict must be against the plaintiff and in favor of the Market Street Railway Company and its motorman."
Also instruction No. X:
"The duty resting upon the motorman of the car in question was to use ordinary care for the safety of the plaintiff. He was not obliged to use a higher degree of care; if he did use ordinary care, then your verdict must be against the plaintiff and in favor of the motorman and also in favor of the Market Street Railway Company."
Also instruction No. XIII:
"The motorman of the street car in question had a right to expect, in the absence of warning or knowledge to the contrary that the plaintiff, Betty Gackstetter, would not suddenly undertake to run across the street or into the car, if you find she did so."
Also instruction No. XIV:
"In determining the question of negligence in this case you should take into consideration all of the facts and circumstances surrounding the occurrence, including the fact that the street car could not travel upon any other part of the street except its rails; the speed at which it was traveling; that the plaintiff was a child of the age of three years; the place where the accident happened; the conditions existent at the time and place and any other facts proved from which you can determine whether under the circumstances the motorman defendant used the degree of care which an ordinary prudent person would have used in the same circumstances."
Also instruction No. XV:
"If you find that the plaintiff suddenly ran in front of, or in such close proximity to the moving car at a time and under such circumstances that the motorman by the exercise of ordinary care had no reason to believe or expect that she would do so, and at a time, when by the exercise of ordinary care it was impossible to have stopped the car in time to have avoided injuring her, then I instruct you your verdict should be against the plaintiff and in favor of the Market Street Railway Company and its motorman, if you further find they were not guilty of negligence as charged in the complaint."
It is not error to refuse an instruction, when the matter requested is substantially covered by other instructions. 19 Cal.Jur. 748; Murray v. United Railroads, 49 Cal.App. 462, 193 P. 596; Cook v. Los Angeles, etc., Ry. Co., 134 Cal. 279, 66 P. 306.
Defendants also complained of the refusal by the court to give the following instruction:
"The defendants had the right at the time and place of the happening of the accident in question, to operate its car at the speed of 15 miles an hour. If you find, under the facts and circumstances of this case, as shown by the evidence, by the use of ordinary care, the car, if traveling at this rate of speed could not have been stopped in time to have avoided the infliction on plaintiff of the injuries complained of, then your verdict must be against the plaintiff and in favor of the Market Street Railway Company and its motorman, notwithstanding you also find the speed of the car at the time and place in question was in excess of 15 miles an hour."
The proffered instruction does not correctly state the law. It does not follow, merely because one has complied with the terms of a statute or ordinance, that he is thereby absolved from negligence. One may act in strict conformity to the terms of an enactment, and yet not exercise the amount of care which is required under the circumstances. 19 Cal.Jur. 634; Reaugh v. Cudahy Packing Co., 189 Cal. 335, 208 P. 125; Zarzana v. Neve Drug Co., 180 Cal. 32, 179 P. 203, 15 A.L.R. 401. In the case of Spring v. McCabe, 53 Cal.App. 330, 200 P. 41, 43, the court said:
"The operator of a vehicle may not escape liability for a collision by simply saying that he was not exceeding the speed limit established by statute or ordinance when it happened. It may appear (the other party being without fault) that though a defendant was not exceeding the limit of speed prescribed by the ordinance, yet that he was operating his vehicle without such control as to speed under the particular circumstances as a careful and prudent man in the exercise of due care and caution would have had."
The jury were fully and properly instructed as to the law upon this particular point in instructions XVI, XVII and XIX.
The defendants also complain of the refusal of the court to give the following instruction:
"If you find the accident in question was caused solely and entirely by the fault of the plaintiff, then your verdict must be against her and in favor of the defendant Market Street Railway Company and its motorman."
The matters set forth in that instruction were covered by instructions VI and XV as given by the court. The point has been made by the defendants that plaintiff cannot, as a matter of law, recover for negligence in a case involving the action of the plaintiff in running from the north side of Hayes street to the south side; in other words, that there is a variance between the allegations of the complaint and the proof. In order to justify a reversal, the variance must be material. 19 Cal.Jur. 692; Poak v. Pacific Electric Ry. Co., 177 Cal. 190, 170 P. 159.
It does not appear that there was such a variance between the allegations of the complaint and the proof as could have misled the defendants to their prejudice; the allegations of the complaint being in accordance with the testimony of the defendant McClelland.
It is ordered that the judgment be affirmed.
We concur: NOURSE, Acting P.J.; STURTEVANT, J.