W. M. LEE, Respondent, v. MARKET STREET RAILWAY COMPANY, Appellant, 135 Cal. 293

HENSHAW, J. This action was brought to recover damages for personal injuries sustained by plaintiff. A verdict was given in his favor, judgment in due course followed, and from that judgment and from the order denying defendant a new trial it appeals. Upon the evening of September 8, 1897, plaintiff attempted to cross Kearny Street in the block between Jackson and Washington streets. While upon the track of the street railroad he was struck by an electric car approaching from Washington Street, and sustained the injuries complained of, the most serious of which was a crushed foot, necessitating amputation.

Although the accident occurred in the evening, the street was brilliantly lighted and objects were plainly discernible. The ear in question could have been seen, and was seen, from a distance of more than one hundred feet from the place of the accident. It must be taken as proved to. the satisfaction of the jury that the car was moving at an unusual rate of speed and was sounding no gong nor alarm-bell.

But it is strenuously argued by appellant that, conceding it to have been negligent in its operation of the car, none the less the plaintiff himself was guilty of contributory negligence, barring bis right of recovery. Upon this plaintiff’s own testimony is, that having been standing upon the curbstone, he looked up and down the street before he adventured the crossing; and he further testifies: “All that I know about the accident is, that I was struck and my foot was mangled. I know that the car was right on me; and I know that some man hollered in the car. I do not know where the man was who hollered at me.

I supposed he was in the car. The sound was right at me when I heard it.” That a man, under these circumstances, should thus heedlessly cross a public street in the middle of a block, and know nothing of the approach of a street-car until the moment when it struck him, is a demonstration of. carelessness and negligence so complete as to require no comment. Were this the whole of the matter, it would be clear that by his own conduct plaintiff had forfeited his right to a recovery.

But there is a further principle firmly established in this state, that one having an opportunity by the exercise of proper care to avoid injuring another, must do so, notwithstanding the latter has placed himself in a situation of danger by his own negligence (Fox v. Oakland Consolidated St. Ry. Co., 118 Cal. 55); or, as the principle was stated in another form, in Esrey v.

Southern Pacific Co., 103 Cal. 541: “He who last has a clear opportunity of avoiding the accident by the exercise of proper care to avoid injuring another, must do so.” As Beach well puts it (Contributory Negligence, sec. 50): “The real issue is not whose negligence came first or last, but whose negligence, however it came, was the proximate cause. ’ ’ The motorman testified that he was some fourteen feet from the place of the accident when he discovered the plaintiff approaching the track. He did not then think that the man would attempt to make the crossing.

Witness was standing with the brake in one hand and the bell-strap in the other, and, as he came nearer, saw that the man was about to step upon the track. “I jerked the bell down and the brake at the same time, and as I jerked the bell down, I hollered, ‘Look out,’ and I reached over for the reverse. As I got hold of the reverse, I just gave the brake also a little slack to let the wheels slip back when I put the reverse into it. By the time I got the reverse and brake on, he was within two feet of the front of the ear. I was going about six and a half miles an hour.

I did everything that was possible to do to avoid the accident.” But against this testimony was that introduced by the plaintiff’s witnesses, that the car was coming at a high and unusual rate of speed; that the attention of the motorman was directed to the plaintiff by a passenger upon the car, and that when so directed he did not attempt to stop his car, but satisfied himself with shouting, “Look out,” or “Get out of the way”; that the speed of the car was not promptly checked upon discovery of the perilous situation of plaintiff.

Here, then, was enough to warrant the submission to the jury of the question whether or not the defendant exercised ordinary care after discovery of plaintiff’s situation of peril. If it did not, then, notwithstanding the negligence of plaintiff, it was liable. The verdict of the jury is a finding to the effect that they did not believe that defendant’s employees exercised proper care after discovery of plaintiff’s situation.

The appellant complains that, as there was no allegation in the complaint that any act on the part of the defendant was willfully or wantonly done, instructions to the jury upon the matter were improper and harmful; but,,at defendant’s own request, the jury were instructed that contributory negligence defeats a recovery, “unless in the exercise of ordinary care after the discovery of plaintiff’s peril they could have avoided the injury complained of,” and “unless you also find that their action in the premises was wanton and reckless.” (Illinois Trust etc. Bank v. Pacific Ry. Co., 115 Cal. 285; Rudel v.

Los Angeles Co., 118 Cal. 281; Avakian v. Noble, 121 Cal. 216.)" Other objections are made by appellant to the instructions given and refused by the court. We find no just cause of complaint. The law covering their deliberations was quite fully and accurately presented to the jury. The judgment and order appealed from are therefore affirmed. Temple, J., Van Dyke, J., and Harrison, J., concurred. Garoutte, J., concurred in the judgment. 62 Am. St. Rep. 216.