Byrne v. City and County of San Francisco

• Decision Date: 22 December 1980
• Citation: Byrne v. City and County of San Francisco, 170 Cal.Rptr. 302, 113 Cal.App.3d 731 (Cal. App. 1980)
• Court: California Court of Appeals
• Parties: Maureen BYRNE, etc., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents. Civ. 45650.

Page 302

170 Cal.Rptr. 302

113 Cal.App.3d 731

Maureen BYRNE, etc., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

Civ. 45650.

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

Dec. 22, 1980.

Terence J. O'Reilly, Walkup, Downing, Shelby, Bastian, Melodia, Kelly & O'Reilly, San Francisco, for plaintiff and appellant.

George Agnost, City Atty., Dan Maguire, Deputy City Atty., San Francisco, for defendant and respondent, City and County of San Francisco.

Bledsoe, Smith, Cathcart, Boyd & Eliot, R. Mitchell S. Boyd, San Francisco, for defendant and respondent Cousins.

John L. Winingham, Shelley A. Kramer, Winingham, Roberts & Rogie, San Francisco, for defendants and respondents Larsen.

TAYLOR, Presiding Justice.

This is an appeal ¹ from a judgment entered on a special jury verdict finding that the evidence did not establish negligence on the part of any defendant amounting to a proximate cause of personal injuries sustained by the minor plaintiff. The questions are whether: 1) the trial court properly refused plaintiff's proffered jury instruction based on Vehicle Code section 21951; and 2) the trial court abused its discretion by denying plaintiff's motion for a new trial on grounds that the evidence was insufficient to justify the verdict. For the reasons set forth below, we have concluded that the judgment must be affirmed.

The record reveals the following pertinent facts: The accident occurred about 4 p. m. on March 26, 1974. Plaintiff, who was then 14 years old, got off a city municipal railway bus at the southeastern corner of the intersection of Sunset Boulevard and Santiago Street in San Francisco. Sunset has three lanes of traffic traveling north and south; Santiago crosses in an east and west direction with arterial stop signs. Plaintiff had passed in front of the stopped city bus when she was first struck in the marked crosswalk, by the red 1972 Ford pickup truck driven by Cousins in the middle lane, and then by the 1971 Camaro in the left lane driven by Larsen. The oncoming traffic was on plaintiff's left as she crossed Sunset.

Plaintiff testified that she had no memory of the accident itself until she was under the second vehicle, but she was sure that she was walking. She did not recall whether or not she looked for oncoming traffic before leaving the sidewalk or before stepping out from behind the bus. She had been instructed by her parents and at school to look to her left and right for oncoming cars before starting to cross the street; it was her custom and habit to do so. Cousins testified that plaintiff was doing a "running walk" and looking straight ahead until she looked at him immediately before impact. The city's bus driver Lawrence testified that plaintiff was walking fast and looking down and that she never looked to the left before the collision. Lawrence saw oncoming traffic and honked his horn to warn her not to proceed into the middle lane, but plaintiff did not turn her head; she appeared to walk faster.

Lawrence had stopped the bus to discharge passengers. He first noted plaintiff when she was almost in the middle of the front of the bus. Lawrence never moved the bus after its initial stop until he left the scene about six minutes after the accident. He did not have his turn signal on, but he did have his brake lights on. They were activated by the open doors of the bus; the doors were still open at the time of the accident.

Cousins and Larsen were traveling within the legal speed limit of 30 miles per hour and did not see plaintiff until immediately before the accident. Cousins' view of the sidewalk and crosswalk was obstructed by the bus so that he did not see plaintiff until she stepped from behind the bus and into his path. He immediately put on his brakes but was not able to avoid hitting her. Cousins had been aware of the possibility of pedestrians and briefly took his foot off the accelerator before approaching the intersection.

Larsen's vision of the right side was obstructed by Cousins' pickup truck which blocked his view of all of the curb lane and part of the middle lane. Larsen did not see the bus until after the accident. He first realized that there was the danger of an accident when he heard the squealing of the pickup truck's brakes. Larsen immediately applied his brakes. While approaching the intersection, he also briefly let up on the gas pedal in case there might be any pedestrians or vehicles starting to cross Sunset.

Larsen's statement that he did not see plaintiff prior to impact was supported by his expert, Dr. Stuart, who testified that Larsen could not see the plaintiff prior to her falling in his path; in his opinion, there was no way Larsen could have avoided the accident. Cousins' statement that his view of plaintiff was blocked before she stepped into his path was supported by the testimony of the investigating officers who reported that the cause of the accident was the city bus which obstructed the vision of the oncoming motorists.

Plaintiff was aware that the front of the bus was higher than the top of her head and that it was wide enough to fill the traffic lane. She testified that she knew that she would not be visible to cars coming down the street, and that she "thought" she realized that vehicles would be coming down left to right. Plaintiff was familiar with the intersection and knew that Sunset was a through street with vehicles moving at 30-35 miles per hour.

Plaintiff's first assignment of error is trial court's refusal to give her proffered instruction based on Vehicle Code section 21951, which provides: "Whenever any vehicle has stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway the driver of any other vehicle approaching from the rear shall not overtake and pass the stopped vehicle." (Emphasis added.)

Plaintiff correctly states the rule that a party is entitled to have the jury instructed on all theories of the case supported by the pleadings and the evidence. The evidence necessary to justify the giving of an instruction need not be overwhelming. She properly relies on Washington v. City & County of S. F., 123 Cal.App.2d 235, 238, 266 P.2d 828, and Phillips v. G. L. Truman Excavation Co., 55 Cal.2d 801, 806, 13 Cal.Rptr. 401, 362 P.2d 33, to argue that the evidence presented may be slight, inconclusive, or even opposed to the preponderance of the evidence.

We think, however, that plaintiff has not met the threshold burden of placing herself within the fact pattern covered by Vehicle Code section 21951 (Mishkin v. Sanvidotti, 158 Cal.App.2d 511, 515, 322 P.2d 526). Here, the bus was stopped at, or very close to, the marked crosswalk; plaintiff was struck while in the crosswalk. Uncontroverted evidence indicated that the bus was stopped to allow passengers to disembark. The bus driver (Lawrence) testified that he had stopped to discharge passengers and that the door to the bus was still open when plaintiff was struck. Plaintiff argues that her instruction should have been given on the basis of a reasonable inference that while the bus had stopped initially to allow passengers to disembark, by the time that she crossed in front of the bus, it had to stop to permit her to use the crosswalk.

However, as Larsen points out, plaintiff's argument was decimated by Lawrence's uncontradicted testimony that he did not see plaintiff until she was in the middle of the front of the bus and that he sought to prevent her from continuing to cross the street in the face of oncoming traffic by honking his horn. As the record contains no other evidence as to why the city bus stopped, there is no evidence to support a finding of the preliminary fact that is the prerequisite for the application of Vehicle Code section 21951. The only fact established was that the bus was stopped to discharge passengers; there is no basis for an inference that the bus remained stopped to allow pedestrians to cross.

Plaintiff relies on the rule that when conflicting evidence is presented, the jury must be given instructions on each theory in keeping with their role as the trier of fact (Cohen v. Bay Area Pie Co., 217 Cal.App.2d 69, 31 Cal.Rptr. 426; Gonsalves v. Petaluma Bldg. Materials Co., 181 Cal.App.2d 320, 5 Cal.Rptr. 332). These authorities, while correctly stating the current law, are inapposite here, as there is no conflict of evidence about the purpose for which the bus had stopped at the time of the accident.

The issue of whether the jury should have been given the Vehicle Code section 21951 instruction has not previously been raised in a reported case in this state. Cousins relies on the only reported U.S. case, Titus v. Stouffer, Ohio App., 40 N.E.2d 178. In Titus, the Court of Appeals of Ohio affirmed the trial court's exclusion of a municipal ordinance with provisions substantially similar to Vehicle Code section 21951 on the ground that there, as here, there was no evidence indicating the bus was stopped to allow pedestrians to cross; rather, the bus had stopped solely to allow passengers to get on and off the vehicle.

Plaintiff's second assignment of error is that the trial court abused its discretion by denying her motion for a new trial pursuant to Code of Civil Procedure section 657 ² on the ground that the evidence was insufficient to justify the verdict. She also argues that defendants were guilty of negligence per se since she was in the crosswalk when she was struck.

In considering a motion for a new trial, the trial court has an affirmative duty to make an independent appraisal of the evidence and to grant the motion when the preponderance of evidence is opposed to the findings of the jury (Brown v. Guy, 144 Cal.App.2d 659, 661, 301 P.2d 413; Judd v. Chabek, 162 Cal.App.2d 574, 577, 328 P.2d 245; Bernson v. Bowman, 182 Cal.App.2d 697, 700, 6 Cal.Rptr. 455; Pemberton v. Barber, 199 Cal.App.2d 534, 538...