
    [Civ. No. 446.
    
    Third Appellate District.
    April 17, 1908.]
    G. H. WILEY, Respondent, v. McNAB & SMITH, a Corporation, Appellant.
    Negligence—Injury to Gatekeeper—Careless Driving of Truck— Contributory Negligence—Question of Fact.—In an action for personal injuries sustained by the plaintiff, while in the performance of his duties as gatekeeper, by the careless driving of a truck of the defendant, whereby the gateway and the adjoining fence were thrown upon plaintiff to his injury, where the only question involved upon appeal from the judgment in favor of the plaintiff is that of his contributory negligence, the judgment will not be disturbed, where the record shows that it was fairly debatable whether plaintiff’s conduct was not that of a reasonable, prudent and cautious person, and that the question of its determination was one of fact for the jury, whose conclusion is binding upon appeal
    
      Id.—Wideness op Gate—Facility fob Entrance—Proper Position op Plaintiff.—Where it appears that the gate was sufficiently wide for the easy entrance of the truck, with proper driving, and that the plaintiff was at a convenient place for the discharge of Ms duties as gatekeeper, and where he was accustomed to stand while the gate was being used, it cannot be said, as matter of law, that Ms position was one of danger.
    Id.—Position When not One op Danger.—A position is not one of danger if a person occupying it can come to harm only through lack of ordinary sMll and care on the part of another.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. John Hunt, Judge.
    The facts are stated in the opinion of the court.
    Thomas, Gerstle, Frick & Beedy, for Appellant.
    Francis Dunn, and Beatty & Sanderson, for Respondent.
   BURNETT, J.

This is an action for damages, the gist of which is shown by the following allegation of the complaint: ‘ That on the 10th day of July, 1904, defendant was the owner of a certain truck and team of horses; that on said day, while passing through a gateway, on Bryant street, near Tenth, San Francisco, defendant managed said truck and team negligently and with want of ordinary care and skill, so that, by reason of its negligence and want of ordinary care and skill, defendant knocked the gate and adjoining fence down upon plaintiff.” Plaintiff was quite severely injured, "but the jury found a verdict in his favor for only $250.

The only question seriously discussed by appellant involves the contention that plaintiff was guilty of contributory negligence. We think it is fairly debatable whether the conduct of said plaintiff under the circumstances was that of a reasonably prudent and cautious person, and therefore its determination was properly submitted to the jury, whose conclusion is binding here.

It cannot be said as a matter of law that the position behind the gate assumed by respondent was one of danger. As declared in his brief: “He had worked seven days continuously as gatekeeper. During that time many teams passed in and out daily, and no accident occurred. He concluded that any reasonably skillful and careful driver could enter the gate without accident. A position is not one of danger if a person occupying it can come to harm only through lack of ordinary skill and care on the part of another.” It is true that the gate had been struck by other vehicles, but there is nothing to show that it was not the result of carelessness or inefficiency on the part of the driver, and plaintiff had no knowledge of such an occurrence. The gate was wide enough for the easy entry of the truck. Respondent was at a convenient place for the discharge of his duties as gatekeeper, and where he was accustomed to stand while the gate was being used, and we cannot say that an ordinarily prudent and cautious person would have taken his station at some other point or would have anticipated such an accident.

Some criticism is made of the action of the court in giving and refusing instructions. But from the condition of the record we have a right to assume that all the instructions given were requested by appellant, and that no requested instruction was refused.

The judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.  