Biggar v. Carney

• Decision Date: 18 May 1960
• Citation: 5 Cal.Rptr. 94,181 Cal.App.2d 22
• Parties: Emilie Green BIGGAR, Plaintiff and Respondent, v. William Thomas CARNEY et al., Defendants. William Thomas Carney, Defendant and Appellant. Civ. 24331.
• Court: California Court of Appeals Court of Appeals

Page 94

5 Cal.Rptr. 94

181 Cal.App.2d 22

Emilie Green BIGGAR, Plaintiff and Respondent, v. William Thomas CARNEY et al., Defendants William Thomas Carney, Defendant and Appellant.

Civ. 24331.

District Court of Appeal, Second District, Division 1, California.

May 18, 1960.

As Modified on Denial of Rehearing June 14, 1960.

Hearing Denied July 18, 1960.

Fogel, McInerny & Taft, Moe M. Fogel, Cornelius W. McInerny, Jr., and William J. Taft, Santa Monica, for appellant.

Roger Bentley, Beverly Hills, for respondent.

LILLIE, Justice.

Plaintiff, a pedestrian, sustained personal injuries when she was struck by a car driven by the defendant. The matter was heard by a jury which found in plaintiff's favor. This appeal is from the judgment entered on the verdict and from the denial of a motion for judgment notwithstanding the verdict.

The accident occurred on the evening of May 24, 1957, at approximately 9:30 o'clock as the plaintiff was crossing Wilshire Boulevard near Westwood Village in a northerly direction between crosswalks Wilshire at that point runs roughly east and west, being marked at the time in question by painted lines for three lanes of moving traffic both estabound and westbound, with an additional lane on each side for parking purposes; a double white line in the center of the street separated the eastbound and westbound lanes. There is a slight downgrade westward. In the vicinity of the accident sigle globe ornamental lamps placed at 100 foot intervals were in operation on each side of the throughfare.

Plaintiff testified that she arrived home from work about 7 o'clock, consumed two drinks or vodka during the next forty-five minutes and then had a light dinner. After drinking two cups of coffee with her landlord, she left in her automobile to visit a friend who lived on the north side of Wilshire immediately east of Glendon Avenue; plaintiff was wearing relatively darkcolored clothing. At approximately 9:15 she parked her car on the south side of Wilshire almost opposite her friend's apartment and about 250 feet east of the Glendon Avenue crosswalk. Alighting from her car, she observed that eastbound automobiles were stopping for the traffic light at Glendon; looking to her right, she noticed that the signal at Selby Avenue, an intersecting street roughly one and tow-thirds blocks east of her, had just turned green. According to plaintiff she again looked toward Glendon Avenue and then started directly across the street; when she arrived at the center of the thoroughfare, she looked about a second or two to determine the position of westbound traffic and noticed the lights of automobiles in the lane adjacent to the double white line and the middle westbound lane; these lights she mistakenly placed at the intersection of Malcolm Avenue (immediately to the east) which, according to a map of the area, was about 400 feet distant. Plaintiff then continued across the street without looking to her right or left until momentarily before the collision with defendant's car which was proceeding in the northernmost lane. At that moment her attention was attracted by the screeching of brakes; she stopped, turned to her right and threw up her hands. The impact followed at a point about one foot from the cars parked in the northern parking lane.

Certain of the events just related were witnessed by Officer Western whose motorcycle was parked about 50 feet east of Glendon on the south side of Wilshire. A police officer for almost 14 years, 9 of which were spent in traffic enforcement, Western had worked that particular section of Wilshire Boulevard for 3 1/2 years prior to the accident. He testified that traffic in the area was regulated by signals which broke the flow of Wilshire traffic into 'patoons' facilitating a corresponding flow of traffic across that thoroughfare. During one of these 'breaks' in traffic, it seemed to the officer, plaintiff crossed the street; he testified that the moment plaintiff started to cross the street, he looked in both directions to ascertain if she was going to interfere with traffic 'and there was no traffic.' He described plaintiff's gait as 'brisk' and 'in about military cadence'; he continued watching her until she reached the middle of the street; when she reached that point, the leading car in westbound traffic (established to be that of defendant) was in the northernmost lane and he estimated its distance from plaintiff at about 400 feet. He also estimated its speed at approximately 35 miles per hour, adding that that was the general speed of cars, both eastbound and westbound, for 15 minutes prior to the accident. The officer did not recall seeing the plaintiff again until immediately prior to the impace when she was directly in the headlights of defendant's car; the vehicle, he stated, came to 'a very abrupt that.' Skid marks, subsequently measured by another police officer, measured 58 feet overall.

Defendant testified that he was familiar with Wilshire Boulevard in the vicinit of the accident. Prior thereto he had brought his car to a stop at the mechanical signal at Selby and Wilshire, being the last signal prior to the accident scene; at that time his car was in the most northerly driving lane and there were other cars behind him and in the two lanes to his left. Upon leaving the Selby intersection, he remained in the same lane and was the lead car in the group of westbound vehicles. When crossing Malcolm, his estimated speed was 30 miles per hour. He first saw the plaintiff when she was 'in the center of the roadway'--he fixed her position as 'a foot or two to the north side of the double white line,' and there was eastbound traffic passing in back of her. Defendant further described plaintiff's actions as follows: 'She was walking when I first saw her then she went a little way then she hesitated then went ahead again; then she seemed to hesitate again almost in front of the car again.' On impact the plaintiff fell over the right front of defendant's car.

On appeal it is contended that (1) there was no substantial evidence to support the judgment; (2) the court erroneously read an instruction requested by respondent that a greater quantum of care was required of appellant as the driver of an automobile; (3) the court erred in refusing appellant's instructions on (a) imminent peril and (b) proceeding into a known dangerous situation and (4) it was error to deny the motion for judgment notwithstanding the verdict.

Appellant argues that the facts hereinbefore summarized do not disclose any negligence on his part, although conceding that negligence is ordinarily a factual question. He was driving, he contends, at a lawful rate of speed at a place on the highway properly selected by him; he also urges that as soon as he became aware of respondent's presence in his lane of traffic he did everything humanly possible to avoid the collision, and there is corroboration of this latter claim. The driver of a vehicle is not guilty of negligence under the circumstances at bar if he did those things which a reasonably prudent person would have done under similar circumstances. However, the law requires that the operator of an automobile shall always maintain a vigilant watch for other persons and vehicles using the highway (Watkins v. Nutting, 17 Cal.2d 490, 494, 110 P.2d 384); accordingly, under the facts here present the jury might have concluded that appellant failed to perform this duty. From appellant's own testimony, it appears that he first saw respondent when she was in the middle of the thoroughfare with eastbound traffic passing behind her and, even though the estimate is vigorously disputed by appellant, the distance between the parties at that moment was fixed by Officer Western at some 400 feet; thereafter no effort was made by appellant to slacken his speed or otherwise increase his vigilance in the face of the hesitant attitude which appellant himself testified was displayed by respondent during the critical moments that preceded her arrival in his lane of traffic. From these facts the jury could draw the inference that appellant was negligent; even though reasonable minds might differ regarding that conclusion, substantial evidence exists to support such a determination.

Appellant next asks us to conclude, assuming his negligence for argument's sake, that respondent was contributorily negligent as a matter of law. It is argued that respondent did not yield the right of way as required by section 562(a) of the Vehicle Code. ¹ But under that section the pedestrian still has certain rights since the statute was not intended to grant to vehicles a monopoly over streets or highways. As was said in Jones v. Wray, 169 Cal.App.2d 372, 381, 337 P.2d 226, 231, quoting from Lang v. Barry, 71 Cal.App.2d 121, 161 P.2d 949: 'Section 562 does not prohibit a pedestrian's crossing outside of a crosswalk at any time when a motor vehicle is on the highway. 'While the duty to yield the right of way, imposed on the pedestrian by section 562, may call for a higher degree of care while crossing between intersections, the real question of fact in such a case is whether the required care has been exercised, and not merely whether or not the right of way has actually been yielded.' (Citation.) 'It cannot be said that as a matter of law a pedestrian who crosses a well lighted business street in the middle of a block is guilty of violating the statute or of negligence proximately contributing to his injury when he proceeds on his way after observing an automobile approaching from a distance of 200 feet, with nothing to obstruct his view or that of the driver (Citation)'.' It is not contended that the area of Wilshire Boulevard in question was not well lighted; additionally, as already pointed out, a police officer with considerable experience in traffic enforcement testified that 'there was no traffic,' eastbound or westbound, when respondent started across the...