Callahan v. Gray

• Decision Date: 18 February 1955
• Citation: 44 Cal.2d 107,279 P.2d 963
• Parties: Doris CALLAHAN, Plaintiff and Appellant, v. Robert June GRAY, Defendant and Respondent. L. A. 23340
• Court: California Supreme Court

Page 963

279 P.2d 963

44 Cal.2d 107

Doris CALLAHAN, Plaintiff and Appellant, v. Robert June GRAY, Defendant and Respondent.

L. A. 23340.

Supreme Court of California

Feb. 18, 1955.

Edward Clayton Jones and William M. Anderson, Los Angeles, for appellant.

Spray, Gould & Bowers and Philip L. Bradish, Los Angeles, for respondent.

SCHAUER, Justice.

Plaintiff appeals from an adverse judgment, entered on a jury verdict, in her action to recover for alleged personal injuries resulting from an impact with defendant's automobile when plaintiff was walking across Fair Oaks Avenue in South Pasadena, in a marked pedestrian crosswalk. She contends that the evidence as a matter of law is insufficient to support the verdict and ensuing judgment. Contrary to plaintiff's contention, the evidence amply sustains implied findings by thejury (1) that plaintiff negligently walked into the side of defendant's automobile rather than being struck by it, and (2) that plaintiff was not injured by the occurrence. Since either of such findings would support a verdict for defendant, it follows that plaintiff's contention is untenable and, hence, that the judgment should be affirmed.

A purported appeal, also filed by plaintiff, from the court's order denying her motion for a new trial will be dismissed, as such an order is not appealable. (Reeves v. Reeves (1949), 34 Cal.2d 355, 357, 209 P.2d 937; see also 3 Cal.Jur.2d 500.)

The impact or collision between plaintiff and defendant's automobile took place about nine o'clock in the evening in March, 1952. Fair Oaks Avenue runs north-south, and the crosswalk is in the middle of the block rather than at an intersection; it was not controlled by lights or other traffic device. Plaintiff was crossing Fair Oaks from West to east, while defendant was driving north in the 'curb lane' of traffic and approaching the crosswalk. Plaintiff testified that she was in the crosswalk and had seen defendant's car before she had reached the center of Fair Oaks, that the headlights were on, and the car was about half way between the crosswalk and the closest street intersection to the south and was traveling twenty to twenty-five miles an hour, 'not going fast.' Plaintiff continued walking, noticed that defendant started to slow down, and 'thought he was waiting for me'; she did not know how fast he was going then. Plaintiff did not continue to watch the car but instead looked ahead at the door of the restaurant to which she was going 'to get over to the curb'; she did not recall seeing the car from the time it slowed down to the time of impact with her. She stated that her legs were 'contacted' by the left front fender of the car, but she did not remember whether it was the front or the side of such fender that touched her; neither was she 'positive' that the impact knocked her to the ground, 'I only went by what a witness said.' She further testified she did not know where she was when the impact took place, whether the front bumper touched her body, whether she put out either of her hands to brace herself against falling, or when defendant's car stopped although she stated it did stop. After the impact plaintiff went to the door of defendant's car, asked him 'why he didn't watch where he was going,' and without waiting for a response walked on over to the east curb of Fair Oaks. Plaintiff also testified that defendant got out of the car and offered to take plaintiff to the hospital, but plaintiff told him she didn't think she was hurt; she repeated the statement to police officers when they arrived a few minutes later. Plaintiff then returned to a bowling alley on the west side of Fair Oaks, where she remained until approximately 11 p. m., bowling at least two games in the interim.

Defendant testified that as he was approaching the crosswalk and just before the impact he had stopped behind another car, had just started up again, and was traveling less than five miles per hour when he first saw plaintiff. She was then on the left side of his front fender, approximately the 'middle of the wheel.' Defendant stopped 'right then * * * the minute' he saw her; no time elapsed between the time he saw her and the time his car stopped. The front part of his car did not collide with plaintiff and there was nothing to cause him to believe he had struck her at the time he saw her and stopped his car. Plaintiff was not knocked to the pavement, but remained 'standing on her two feet' with her hands touching the left front fender. Defendant offered to take plaintiff to a doctor or to a hospital but plaintiff stated she was not hurt, that 'she had a (bowling) tournament and she wanted to bowl.'

It may also be noted that much of the testimony of both plaintiff and defendant was given in reference to a blackboard diagram which was not preserved for, or incorporated into, the record on appeal.

Medical testimony of a doctor who examined plaintiff some two and one-half months following her alleged impact with defendant's car was that her chief complaints were of pain in one shoulder, numbness of one arm, headaches, taut feeling in back and side of neck, and nervousness; that the doctor had 'carefully gone over the history, and * * * performed a physical and neurological examination' on plaintiff; that the 'Neurological examination was entirely negative. The patient's symptoms are entirely subjective. It is my opinion that this patient is neurologically negative, and is suffering from a psychoneurosis.'

It is elementary that 'Whether or not defendant was guilty of negligence * * * or plaintiff was guilty of contributory negligence * * * is ordinarily a question of mixed fact and law and may be determined as a matter of law only if reasonable men following the law can draw but one conclusion from the evidence presented' (Gray v. Brinkerhoff (1953), 41 Cal.2d 180, 183, ...