Brown v. Kiely
| Decision Date | 23 June 1954 |
| Citation | 126 Cal.App.2d 191,271 P.2d 928 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BROWN v. KIELY. Civ. 15911. |
Carlson, Collins, Gordon & Bold and John Ormasa, Richmond, for appellant.
Weinmann, Rode, Burnhill & Moffitt, Oakland, Cyril Viadro, San Francisco, for respondent.
This is an action for personal injuries caused to plaintiff when as a pedestrian she was struck by defendant's car. The verdict was for defendant and plaintiff appeals from the judgment entered thereon.
The accident happened on March 16, 1952, at 5:45 P.M. at the intersection of Dana Street and Parker Street in Berkeley. Dana Street runs north and south, Parker Street, east and west. According to the evidence most favorable to respondent the plaintiff in crossing from the northeast corner to the southwest corner of the intersection first went due west in the unmarked crosswalk across Dana Street but did not continue in that direction until she reached the northwest corner; she deviated in a southerly direction cutting the corner. While doing so she hesitated, and then continued at a trot across Parker Street just into the path of defendant's car; she was hit by the left front of the car, according to markings made by witnesses on a map of the intersection received in evidence, approximately on or just within the eastern borderline of the unmarked western crosswalk across Parker Street. Defendant did not see her as he was blinded by the sun in the approximate direction of which he was driving.
On appeal the only grievance presented is that the court gave an instruction in the terms of section 562, Vehicle Code, relating to crossing at other than crosswalks, whereas according to appellant the evidence was undisputed that appellant was within the crosswalk when she was hit, so that the instruction found no support in the evidence and was calculated to mislead the jury.
There is no reversible error. The court in instructing the jury read to it both section 560(a) of the Vehicle Code relating to pedestrians' right of way at crosswalks and section 562(a) and (b) relating to crossing at other than crosswalks. The circumstances that appellant did not cross from the northwest corner to the southwest corner but reached the unmarked crosswalk by cutting the northwest corner, describing an arc from the northeast, and that she was near the eastern borderline of the crosswalk when she was hit could cause a doubt as to whether she was crossing within the crosswalk and had the right of way. In case of such doubt it seems correct to instruct the jury on the law with respect to both possibilities, compare Reed v. Stroh, 54 Cal.App.2d 183, 190, 128 P.2d 829; Carney v. RKO Radio Pictures, Inc., 78 Cal.App.2d 659, 666, 178 P.2d 482, and leave the decision which rule is applicable under the facts to the jury, Reed v. Stroh, supra. It was conceded by appellant at the oral argument that the question whether a...
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Sand v. Mahnan
...of fact for the jury's determination as reflected by her submission of the proposed instruction on the subject. (See Brown v. Kiely, 126 Cal.App.2d 191, 193, 271 P.2d 928.) Plaintiff next asserts error in the refusal of the court to give certain instructions, the first of which is the follo......
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Elisalda v. Welch's Sand & Gravel Co.
...and thus waived the point for purposes of appeal. (Sand v. Mahnan, 248 Cal.App.2d 679, 684--685, 56 Cal.Rptr. 691; Brown v. Kiely, 126 Cal.App.2d 191, 193, 271 P.2d 928.) From the record it would appear defendants offered an instruction, the text of Vehicle Code, § 17158, which negatived th......
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Shumate v. Johnson Pub. Co.
...necessarily constituted consent to submission of the issue as a question of fact to be resolved by the jury. Brown v. Kiely, 126 Cal.App.2d 191, 193, 271 P.2d 928. A party cannot request that an issue be submitted to a jury as a question of fact and on review escape the consequences. Cocker......
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...were entitled to have the jury instructed on their theory of the case based upon the testimony of the one witness. Brown v. Kiely, 126 Cal.App.2d 191, 192, 271 P.2d 928; Petersen v. Rieschel, 115 Cal.App.2d 758, 766, 252 P.2d 986; Stickel v. Durfee, 88 Cal.App.2d 402, 406, 199 P.2d Appellan......