Hudson

The action involved in the present appeal is one for personal injuries suffered by the appellee when he was struck by a motorcycle operated by the appellant Burns, who was an employee of the appellant company.

The appellee filed suit in the superior court for the City and County of San Francisco. At the instance of the appellants, the *993 cause was removed to the court below. The case was tri-ed to a jury. The appellants’ motions for a directed verdict, made at the conclusion of the appellee’s case and again when both sides had rested, were denied. The jury awarded the appellee damages assessed at $7,500. Judgment was entered accordingly, and from that judgment the present appeal has been taken.

On August 31, 1932, the appellee alighted from a street car at the intersection of Sixteenth and Mission streets, in a business district of San Francisco. The car stopped at a safety zone on the south side of Sixteenth street. The safety zone was 75 feet long and1 6 feet wide. Desiring to take another street car, to which he had a transfer ticket, the appellee decided to wait on the sidewalk on the south side of the street, instead of in the safety zone, though the car that he wanted…

(concurring).

The situation presented by the record in the case at bar is somewhat unique. Upon supplemental briefs requested by the court the appellee contends that, inasmuch as the case was tried below upon the theory that the San Francisco Ordinance No. 7691, introduced in evidence by appellant, fixed the duties of the parties at the time and place of the accident, the question of whether or not that ordinance was valid or void by reason of its conflict with the state law (section 131½, California Motor Vehicle Act), referred to in the main opinion, is not material on this appeal. There is merit in this contention. Sommer v. Martin, 55 Cal.App. 603, 609 , 204 P. 33 ; Halaminsky v. Nelson, 5 Cal.App.(2d) 287, 288, 42 P.(2d) 676. The difficulty is in applying the trial theory to the case at bar. It is true that both parties claimed in the lower court that the ordinance was controlling and that both parties argued the case in this court upon that theory. The difference between the parties there and here is as to a proper interpretation of the ordinance. The appellant contends that under the ordinance the pedestrian was not entitled to be in the roadway between the safety zone and…