Parker v. City and County of San Francisco

• Citation: 323 P.2d 108,158 Cal.App.2d 597
• Court: California Court of Appeals
• Decision Date: 24 March 1958
• Parties: Dorothy Kathleen PARKER, an Incompetent person, by the guardian of her person and estate, Robert Parker, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants, City and County of San Francisco, Respondent. Civ. 17406.

Page 108

323 P.2d 108

158 Cal.App.2d 597

Dorothy Kathleen PARKER, an Incompetent person, by the guardian of her person and estate, Robert Parker, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants, City and County of San Francisco, Respondent.

Civ. 17406.

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

March 24, 1958.

As Corrected April 14, 1958.

Hearing Denied May 21, 1958.

Paul Friedman, San Francisco, for appellant.

Dion R. Holm, City Atty., C. Wesley Davis, Deputy City Atty., City & County of San Francisco, San Francisco, for respondent.

BRAY, Justice.

A jury rendered a verdict in favor of plaintiff and against defendant City and County of San Francisco for $80,000. ¹ The trial court granted judgment notwithstanding the verdict in favor of defendant. Plaintiff appeals.

The sole question presented is whether there was any evidence of negligence of defendant proximately contributing to the accident.

Evidence.

Plaintiff was a passenger in defendant's motor bus driven by a driver of 6 years' experience. The bus stopped at the Fillmore Street interesection of Sacramento Street on which latter street the bus was proceeding. The marked bus zone was located across Fillmore Street to which zone the bus proceeded. This zone was 55 feet in length and 6 feet wide. Occupying the front end of the zone was a United Parcel truck which was 20 feet long and 7 1/2 feet wide. Concluding that he could not get the bus into the remaining portion of the zone (the bus was 35 feet long and 8 feet wide and according to the driver required 12 to 14 feet clearance in front in order to swing out if flush with the curb--if not, it would need 10 feet) the driver parked the bus parallel with the curb with its front approximately opposite the rear end of the truck. The bus was 10 1/2 feet from the curb at its right and its rear was even with the near line of the crosswalk crossing Sacramento Street. Its left side was about 9 inches from the center of the street. The driver testified that if the bus had pulled into the zone flush with the curb and still left room to move out around the truck into Sacramento Street the bus would have been 6 feet into the crosswalk. Later by use of the diagram it appeared that if so parked, leaving 10 feet to clear the truck, the bus practically would have blocked the crosswalk. If the bus were brought in at an angle so as to leave the right side of the bus closer to the curb than parking parallel as it did, the back of the bus would not have protruded as far into the crosswalk as if parked in the zone parallel to the curb. The driver testified that in conjunction with the rules hereafter mentioned the bus should be brought as close to the curb as possible where there was an obstruction in the bus zone; it was a matter of personal judgment for the driver to select the position.

Sacramento Street going into the intersection is an 8 per cent down grade and is 38 1/2 feet wide. Edward Mackay ² drove a borrowed 1940 Ford Coupe down Sacramento Street in second gear. At some point about 40 to 50 feet from the intersection he discovered that both his foot brakes and his emergency brake did not respond. As he approached the intersection he knew that the bus was on the other side but was not sure whether it had stopped or was still moving. He saw some one in the crosswalk behind it. (This, of course, was not the plaintiff, who left the front right of the bus to walk to the curb.) Mackay, desiring to stop his automobile without hitting anybody, noticed the truck with a steel grate for a bumper. For that reason he decided to pull to the right of the bus and stop his car against the truck's bumper. He did not go to the left of the bus because he could not see around it although he did not see any oncoming traffic. He was going 10 to 15 miles an hour before the intersection but did not know his speed in the intersection or beyond it. He claimed that as he entered the intersection he was blowing his horn and yelling that he had no brakes. He became aware of the people whom he struck when he turned his car right to miss the bus. One witness testified that just as he steppted out of the rear door of the bus some one shouted 'Look out' and the man who had proceeded him out of the door stopped him. The man driving the car yelled that his brakes were not working. The witness stepped back and the car just missed him and the other man. The car proceeded and hit plaintiff who had just alighted from the front of the bus. It also struck a man who had left the curb and had just arrived at the front door of the bus, pinning them between the car and the truck and severely injuring plaintiff.

The bus driver did not see the accident happen. He looked in his rear mirror before crossing the intersection and did not see any traffic behind him. He does not remember whether he again looked into that mirror, but imagined he did so again as it comes automatically. There is another bus stop on Sacramento Street at the end of the block. The bus driver testified that as he approached the intersection he saw that there were persons standing in the zone itself waiting for the bus. The bus driver stated that he knew that in stopping where he did he was disobeying the 'rules of the City and County of San Francisco relative to where you should stop that bus.' One witness testified that as the bus approached he stepped out into the bus zone and awaited it and that one or more persons also steppted into the zone. He waited by the front door until five or six persons alighted, and then the car came right by him. He heard no yelling or noise.

Was There Evidence of Negligence?

It is well settled that on appeal from a judgment notwithstanding the verdict, the evidence and all reasonable inferences therefrom must be viewed most strongly in favor of the verdict, and all conflicts, if any, resolved in favor of the verdict so that if there is any substantial evidence to support the verdict, the judgment must be reversed. Mitchell v. Southern Cal. Gas Co., 122 Cal.App.2d 692, 695, 265 P.2d 118; Rodabaugh v. Tekus, 39 Cal.2d 290, 291, 246 P.2d 663.

The following city laws and regulations were read in evidence:

Section 208, Public Utilities Code: '* * * It shall be unlawful for a bus operator to receive or discharge passengers upon a public street at other than a legally established bus zone, provided however, that he may receive or discharge passengers from a bus parked as close to the right-hand curb as practicable and at a point at least two city blocks distant from the nearest legally established bus zone.'

Section 209, Public Utilities Code: 'Buses must be stopped in marked bus zones. Whenever the driver or operator stops a bus at a bus zone, he shall bring said bus within the confines of said zone as marked out on the curb and/or street, unless such a zone is actually obstructed and the bus cannot be stopped therein.'

General Bulletin No. 911, Municipal Railway: 'Subject: Coaches stopping at curb. Unless regulated otherwise or when parked vehicles occupy zone, motor and trolley coaches must stop of [sic] curb for the purpose of taking on and discharging passengers, in accordance with rule requirements.

'Strict compliance with this important operative requirement will eliminate the cause for this type of complaint which is being received at this office and will contribute greatly to----

'(1) Safety by keeping roadway clear, thus permitting traffic to flow unobstructed.

'(2) Comfort and convenience of patrons.'

Section 3, Rule 45 of the Official Rule Book of the Municipal Railway: 'Coaches must never be backed until operator has stepped from coach and inspected the area in rear, warning any children, pedestrians or traffic of his intentions. When it is necessary to pack [sic] a considerable distance he should seek the assistance of a railway employee to flag all traffic.'

While a carrier of passengers for hire is held to the exercise of the highest degree of care for the safety of passengers in their transportation and is liable for any injury sustained for failure to exercise such care (see Civil Code, § 2100; Bonneau v. North Shore R. R. Co., 152 Cal. 406, 409, 93 P. 106; Osgood v. Los Angeles etc. Co., 137 Cal. 280, 70 P. 169), that high degree of care ends when the passenger safely alights from the bus. See MacLean v. City & County of San Francisco, 127 Cal.App.2d 263, 272, 273 P.2d 698, and Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 735, 306 P.2d 432. This means that the duty ends when the passenger is discharged into a relatively safe space, not merely that he alights safely from the bus if he is discharged into a dangerous area. As we said in MacLean v. City & County of San Francisco, supra, 127 Cal.App.2d at page 272, 273 P.2d at page 704: 'The mere fact of stopping away from the curb but as near thereto as practicable under the circumstances' (emphasis added) is not negligence and buses 'should not discharge their passengers out in the street where there is danger of their being hit by passing vehicles [citations], nor near known dangers from the condition of the street * * *.' See also Brandelius v. City and County of San Francisco, supra, 47 Cal.2d 729, 735, 306 P.2d 432, holding that the rule that the relation of passenger and carrier terminates when a street car passenger alights upon a public street and clears the car from which he alights, is subject to certain qualifications depending upon the circumstances of the case. The court quoted from Dayton v. Yellow Cab Co., 85 Cal.App.2d 740, 745, 193 P.2d 959 (47 Cal.2d at page 735, 306 P.2d at page 436): "until the passenger reaches a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger, the rule of utmost care and diligence set forth in Civil Code, section 2100, still applies." It also quoted from Boa v. San...