Kingston

Plaintiff sued to recover damages for personal injuries. Upon trial by jury plaintiff had judgment from which defendant appeals.

The accident occurred on Van Ness Avenue in San Francisco on the evening of October 23, 1933. Plaintiff had been a passenger on a “D” car which was southbound on Van Ness Avenue. This car had stopped at a safety island about six feet to the rear of a southbound “H” car. Plaintiff had alighted from the front platform of the car, had stepped upon the safety island, and had then started to walk between the two cars toward a safety zone located east of the easterly tracks on Van Ness Avenue. He stopped behind the “H” car with one foot on the easterly rail of that track, stuck Ms head out from behind the “H” car to observe traffic and was immediately struck in the face by the windshield or other left side portion of defendant’s car which he was driving in a northerly direction between the two safety zones on or near the northbound tracks and within approximately six inches of the easterly side of the standing “H” car. When he alighted from the “D” car, plaintiff looked to the south and noticed that the red or stop sign appeared on the traffic signal at the…

I dissent. Appellant’s main contentions are first, that the evidence was insufficient to show negligence on the phrt of appellant and second, that the uncontradicted evidence showed that respondent was guilty of contributory negligence as a matter of law.

It may be assumed for the purpose of this discussion that there was sufficient evidence to sustain an implied finding of negligence upon the part of appellant. It should be stated, however, that the evidence introduced by respondent showed that appellant was traveling no faster than approximately 25 to 30 miles per hour. It should be further stated that the uneontradicted evidence showed that appellant did not enter the intersection against the traffic signal and that appellant was not driving his car to the left of the center line of Van Ness Avenue.

Turning to appellant’s second main contention, I am of the opinion that it should be sustained. This conclusion is reached without regard to the alleged violation by respondent of section 131% of the Vehicle Act, now section 562 of the Vehicle Code (see Gaston v. Hisashi Tsuruda, 5 Cal. App. (2d) 639 [ 43 Pac. (2d) 355 ]), and without regard to the alleged violation by respondent…

Nourse, P. J.

Plaintiff sued to recover damages for personal injuries. Upon trial by jury plaintiff had judgment from which defendant appeals.

The accident occurred on Van Ness Avenue in San Francisco on the evening of October 23, 1933. Plaintiff had been a passenger on a "D" car which was southbound on Van Ness Avenue. This car had stopped at a safety island about six feet to the rear of a southbound "H" car. Plaintiff had alighted from the front platform of the car, had stepped upon the safety island, and had then started to walk between the two cars toward a safety zone located east of the easterly tracks on Van Ness Avenue. He stopped behind the "H" car with one foot on the easterly rail of that track, stuck his head out from behind the "H" car to observe traffic and was immediately struck in the face by the windshield or other left side portion of defendant's car which he was driving in a northerly direction between the two safety zones on or near the northbound tracks and within approximately six inches of the easterly side of the standing "H" car. When he alighted from the "D" car, plaintiff looked to the south and noticed that the red or stop sign appeared on the traffic…