Baillargeon v. Myers

CONREY, P J. The plaintiff appeals from a judgment rendered pursuant to an order granting defendant’s motion for a nonsuit. The plaintiff, a boy twelve years old, brought this action to recover damages for personal injuries received in a collision which occurred between an automobile of the defendant and a bicycle on which the plaintiff was riding. At the conclusion of the evidence received on behalf of the plaintiff, the defendant moved for a nonsuit on the following grounds: 1. That the plaintiff was guilty of contributory negligence in coming down Clay Street in the city of Los Angeles from the crest of Clay Street to its intersection with Fourth Street, a distance of approximately one hundred and fifty yards, in the manner and under the circumstances shown by the evidence ; 2. That there is no testimony indicating that the defendant was guilty of any negligence; 3. That if the plaintiff was not guilty of contributory negligence, then the same evidence necessarily shows that the accident was unavoidable and without fault of either party. On June 26, 1911, when this accident occurred, there was in force an ordinance of the city of Los Angeles requiring that “every person riding, driving, propelling, or in charge of any vehicle, . . . upon any street within the city of Los Angeles, . . . shall travel on the right-hand side of such street and as near the right-hand curb thereof as possible. ’ ’ Violation of any of the provisions of this ordinance was declared to be a misdemeanor. At the time of the accident in question the defendant’s automobile was traveling westerly on Fourth Street and was entirely on the south side of the street, which was the left-hand side as the automobile was moving. The plaintiff was riding a bicycle which was equipped with a coaster-brake and was traveling southerly on Clay Street toward the intersection of Fourth. During the last one hun *189 dred and fifty yards of Ms passage over Clay Street he was going down hill on a grade of approximately fourteen per cent. From curb to curb the width of Fourth Street in that block is forty feet and the width of Clay Street is twenty feet. When the plaintiff got to Fourth Street he tried to stop his bicycle and discovered that his coaster:brake would not work. He proceeded straight across Fourth Street to the south side thereof to make the turn easterly. As he was completing this turn on West Fourth Street he collided with the defendant’s automobile, which was moving as before stated, and was thereby thrown from the bicycle and received the injuries of which he complains. The plaintiff had tried his brakes before the accident on that same day and they worked all right; until the moment of his entering Fourth Street, as above stated, he did not discover that the brakes would not work. It is not claimed that the defendant’s automobile was moving at an excessive rate of speed. The plaintiff’s bicycle, just prior to the collision, was going at about eight miles per hour. The plaintiff did all that he could to stop his bicycle before reaching Fourth Street. At the time of the collision he was on the south side of Fourth Street, which for him was the right side of the street and where he was entitled to be. If the defendant’s automobile at that time had not been on that side of the street, which for it was the wrong side, this accident could not have occurred. Respondent’s counsel, while conceding that respondent was guilty of negligence per se in operating his automobile on the wrong side of the street in violation of a municipal ordinance, insist that this is not sufficient to make out a case of liability against respondent. They say, and in this we agree, that the law requires it to be shown that the particular negligence in question was the proximate cause of the plaintiff’s injury. There must be a causal connection between the unlawful act and the injury. TMs rule is stated in Cary v. Los Angeles Ry. Co., 157 Cal. 599, 604, [21 Ann. Cas. 1329, 27 L. R. A. (N. S.) 764, 108 Pac. 682], where the court further says: “For example, it is negligence if the whistle of a locomotive engine is not sounded and its bell rung at crossings, but if the train were derailed by a misplaced switch, an injured passenger could not base his recovery upon the showing that somewhere along the journey the whistle had not been blown *190 or the bell sounded when these things should have been done.” In the ease at bar the negligent act of the defendant was not one which preceded and was completed prior to the time of the accident, but was continuing at the very moment of the collision. No intervening cause existed from which it could be inferred that defendant’s negligence was not the proximate cause of the injury. It follows that a nonsuit could not properly have been granted upon the ground that there is no testimony indicating that the defendant’s negligence caused the injury to the plaintiff. The claim that the accident and injury were not caused proximately by defendant’s negligence should not be confused with the defense of contributory negligence. That is another subject which we will now consider. Respondent’s contention that the plaintiff was guilty of contributory negligence is based upon facts shown with regard to the manner in which plaintiff rode his bicycle down Clay Street to the intersection of Fourth Street. The facts specially relied upon, as stated in the motion when made in the superior court, were that the plaintiff rode down Clay Street without a brake or any means upon his wheel to stop or slow the speed of the bicycle; that he did not try to stop the speed of the bicycle at all; that some one called to him as he approached Fourth Street and he was then going so fast that he could not stop the bicycle and then discovered for the first time that the coaster-brake would not work; and that if the plaintiff had used ordinary means to prevent the accident the accident would have been prevented. Conceding that the facts in evidence had some tendency to show negligence on the part of the plaintiff, we cannot say that as a matter of law such negligence was conclusively proved. At most, it was sufficient to present a question for the jury to determine. The age and experience of this boy, the kind of care used by him in controlling his bicycle, and the attached coaster-brake and in keeping the same in safe condition; the fact that he had tested the brake earlier in the day and found it in good condition; and the fact that after discovering the uselessness of the brake he kept the bicycle on his own side of the road and was using all means in his power to get out of the difficulty without infringing upon the right of way of the defendant; these and all other details of fact connected with the conduct of the plaintiff at and immediately preceding the accident were circumstances from which the jury might *191 or might not conclude that the plaintiff was guilty of negligence and might or might not conclude that such negligence contributed proximately to the collision and injury which occurred. We are further satisfied that it cannot be said as a matter of law that the plaintiff’s injuries were caused by unavoidable accident. The judgment is reversed. James, J., and Shaw, J., concurred.