Driver v. Norman

• Decision Date: 11 October 1951
• Citation: 236 P.2d 6,106 Cal.App.2d 725
• Court: California Court of Appeals Court of Appeals
• Parties: DRIVER v. NORMAN. Civ. 18329.

Page 6

236 P.2d 6

106 Cal.App.2d 725

DRIVER v. NORMAN.

Civ. 18329.

District Court of Appeal, Second District, Division 2, California.

Oct. 11, 1951.

Hearing Denied Dec. 6, 1951.

Parker, Stanbury, Reese & McGee and Wm. C. Wetherbee, Los Angeles, for appellant.

Royal M. Galvin, Beverly Hills, for respondent.

MOORE, Presiding Justice.

Defendant appeals from the trial court's order granting plaintiff a new trial after a verdict in favor of the defendant. Such new trial was granted solely on the ground that the court erred in giving an instruction on unavoidable accident.

Respondent commenced this action to recover damages for injuries received when she was struck by appellant's automobile at the intersection of Seventh and New Hampshire streets in the city of Los Angeles on April 16, 1949, at about 7:30 p. m. Seventh street is an east-west thoroughfare and is approximately fifty-five feet wide at the point of impact. New Hampshire runs north and south and is about 40 feet in width. Respondent was walking north across Seventh street within the easterly unmarked crosswalk and appellant was driving east on Seventh street at the time his vehicle encountered respondent. This intersection was in a residential area and was well lighted by street lights at each corner.

Appellant's testimony reveals briefly the following: He was driving east on Seventh at a speed of 20 to 30 miles per hour and following behind a Cadillac at a distance of about 15 feet. The latter car was proceeding in the second lane from the curb adjacent to parked vehicles along Seventh street. Appellant's car was partly in the same lane and partly in the lane next to the center of Seventh street. When appellant reached the center of New Hampshire the Cadillac suddenly slowed down and swerved five feet to the right. It was then that appellant saw plaintiff for the first time. He immediately applied the brakes, swerved to the right but struck the unfortunate woman with the left front headlight. Appellant testified that she stepped from in front of the Cadillac into the path of his car, and that although the Cadillac did not strike respondent, her coat brushed along its side.

The 62-year-old pedestrian testified that before the stepped off the curb, she observed two cars coming toward her from the west but both were well back of the intersection; one was to the rear of the other and a little to its left; she immediately proceeded across the street at a normal pace; she observed the rear car after she had arrived at approximately the center of Seventh street, was startled by its proximity, turned to face it and was struck. She did not otherwise hesitate or stop after leaving the curb. She never formed an estimate as to the speed of the vehicle and never looked toward it again until the moment of impact.

Appellant now seeks a reversal of the order granting the new trial, contending that no error resulted from the giving of the instruction on unavoidable accident.

Although the law on this question was somewhat befogged at the time of the trial, since that date the Supreme Court has decided Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823, which clears away the former mist. It is there held that the giving of an instruction on unavoidable accident is proper unless the defendant is negligent as a matter of law. Accordingly, respondent seeking to uphold the trial court's determination argues that appellant was guilty of negligence as a matter of law in failing to yield the right-of-way to a pedestrian in a crosswalk as is required by Vehicle Code, § 560, citing Nicholas v. Leslie, 7 Cal.App.2d 590, 46 P.2d 761; Fischer v. Keen, 43 Cal.App.2d 244, 110 P.2d 693; People v. Lett, 77 Cal.App.2d 917, 177 P.2d 47; Ducat v. Goldner, 77 Cal.App.2d 332, 175 P.2d 914. She contends also that appellant's failure to maintain a proper lookout and his following a...