Thorpe v. Brodway-Overland Co.

LLOYD, J.

The foregoing testimony clearly shows that Little, with others, was waiting to pass the stopped street car and tends to show that being in a hurry he was not willing to wait until the traffic cleared so that he could pass to the right of the street car, and that he did what he was not privileged to do, passed to the left of the street car, which was in violation of §6310-20, GC, since as we view it, a vehicle may, within the meaning of this section, overtake a street car proceeding in the same direction, although stopped temporarily on a switch.

If, as at least one witness testified, Little was proceeding at a speed “around 30 to 35 miles an hour,” then such speed, if in fact greater than was reasonable and proper, was a violation of §12603, GC, as then in force.

Thorpe had a right to assume, in the absence of knowledge to the- contrary, that Little would observe rather than violate the traffic laws of the state and that in passing the street car none of the waiting vehicles would pass to the left thereof. It was but a short distance from where Little had stopped in the rear of the street car to the point where Thorpe was injured, and there is at least some evidence tending to prove that Thorpe had taken one or two steps from the curb before Little started to pass the street car and that in the emergency thus created Thorpe jumped back toward the curb and. was struck by the oncoming automobile.

Believing that there is at least some evidence from which a jury might so conclude, the trial court in our opinion erred in directing a verdict in favor of defendant in error.

The judgment is therefore reversed and the cause remanded for further proceedings according to law.

WILLIAMS and RICHARDS, JJ, concur.