Christensen v. Bergmann

• Decision Date: 01 February 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Lila Lee CHRISTENSEN, by her guardian ad litem Frederick O. Christensen, and Frederick O. Christensen, Plaintiffs and Appellants, v. Robert BERGMANN and Ward Harris, Incorporated, a corporation, Defendants and Respondents. Civ. 16908.

Page 561

306 P.2d 561

148 Cal.App.2d 176

Lila Lee CHRISTENSEN, by her guardian ad litem Frederick O. Christensen, and Frederick O. Christensen, Plaintiffs and Appellants, v. Robert BERGMANN and Ward Harris, Incorporated, a corporation, Defendants and Respondents.

Civ. 16908.

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

Feb. 1, 1957.

Hearing Denied March 27, 1957.

Alexander S. Keenan, Jr., San Francisco, for appellants.

Ropers & Majeski, Redwood City, for respondents.

COMSTOCK, Justice pro tem.

This is an appeal by plaintiffs from a judgment for defendant entered upon the verdict of a jury and from an order denying plaintiffs' motion for judgment notwithstanding the verdict. Plaintiff Lila Lee Christensen is a fourteen-year-old minor girl. She sued through her father and guardian ad litem, Frederick O. Christensen, who also sued in his individual capacity. Damages for personal injuries were claimed for the minor; her father sought to recover for expenses paid by him for her care and treatment.

Defendant Robert Bergmann was the servant and employee of defendant Ward Harris Incorporated and was acting within the course and scope of his employment.

The action arose from a collision in which a 1953 Chevrolet Club Coupe, driven by the defendant Bergmann, struck the plaintiff Lila Lee Christensen, who, as a pedestrian, was crossing a highway in an unmarked crosswalk at an intersection.

El Camino Real is a highway running northerly and southerly through Redwood City in San Mateo County. It intersects with Dumbarton Avenue, which enters El Camino Real from the east, and Oakwood Drive, which enters it from the west opposite and in prolongation of Dumbarton Avenue.

Plaintiff Lila Lee Christensen and defendant Robert Bergmann were th eprincipal actors. For convenience they will be referred to, respectively, as plaintiff and defendant.

At the time of the accident, approximately 11:00 a. m., June 15, 1953, plaintiff and three other girls, one being of the same age as plaintiff and two aged nine years, were walking westerly on the southerly side of Dumbarton Avenue, intending to cross El Camino Real to look at a swimming pool located westerly of the highway. The crosswalk on the southerly side of the intersection was unmarked. There was a marked crosswalk on the northerly side of the intersection. The girls stopped at the southeast corner of Dumbarton Avenue and El Camino Real to let traffic go by. A high, white-colored, Ford Vanette, walkin Delivery truck traveling northward in the northbound lane of El Camino Real closest to the curb near which the girls stood came to a stop about eight or ten feet southerly of the girls. The truck driver motioned the girls across in front of him. Plaintiff and one of the nine-year-old girls started across the street first. They were holding hands, plaintiff on the left and closer to the truck. According to plaintiff's direct testimony, she walked past the truck and had gotten a few feet into the other lane (in which defendant was driving), and did not see defendant's car until the instant it hit her. Cross-examination of the plaintiff developed that she looked to the south before she left her position on the corner and again when she came to the edge of the truck, and, also, just as she passed the edge of the truck; that she could see 'down there' but did not see defendant's car.

Plaintiff and her nine-year-old companion were injured, plaintiff receiving a fractured leg and other serious injuries.

The driver of the truck testified that he was proceeding northerly on El Camino Real in the lane next to the curb, just before the accident, at a speed of about 30 or 35 miles per hour. When he was about 150 feet south of the Dumbarton intersection he saw four children at the corner waiting to cross, so he slowed down. He did not remember whether he made any signal. He stopped to let the girls by. They passed the front of his truck, and, as they did so, he observed in his rear-view mirror that defendant's car was approaching rapidly from his rear in the lane next to his. He yelled a warning but did not know whether the girls heard him. Two of the younger girls jumped back and he 'believed' one of the other girls jumped back but was hit a glancing blow and thrown in front of his truck. One girl kept on going and was 'hit right straight.' He did not hear the other car sound a warning nor hear its brakes being applied but did see skid marks afterward. He did not see defendant's car turn to the left nor recall that the skid marks showed a turn to the left, but he identified a photograph of the skid marks and admitted that it showed that they did turn a little to the left.

Mrs. Rose Boner witnessed the accident from her automobile which had halted on Oakwood Drive facing east preparatory to turning south on El Camino Real. She saw four children attempting to cross the highway. Two of them were hit. They were looking straight ahead at all times that she observed them. They were not walking slow and were not running. She believed their gait was a rapid walk, hurrying. The truck appeared to her to be turned at an angle to its right. She estimated the speed of the car which hit the children as medium, between 30 and 45 miles per hour.

There was no conflict in the testimony that at all pertinent times the truck was in the easterly northbound lane, designated by witnesses as lane number one, and defendant in the next adjoining northbound lane, designated as lane number two.

Defendant Robert Bergmann was driving north on El Camino Real in lane number two. The weather was good, the sun was shining and the highway was dry. The traffic was light in front of him. There were no vehicles ahead of him in the same lane. He first noticed the truck when he was about 4 or 5 blocks from Dumbarton Avenue. It was proceeding in lane number one about 50 or 60 feet ahead of him. Their speed was approximately the same, 30 to 35 miles an hour. When the truck was approximately 100 to 150 feet from Dumbarton Avenue it began to slow down gradually. He took his foot off the accelerator but gained on the truck. He could see straight ahead and to his left and looked toward the front of the truck but it obscured his view to its front and beyond it. He was familiar with the locality and could see the intersection except the portion obscured by the truck. He thought the truck was going to turn right. When it stopped it was turned at an angle to the right. At the moment the truck stopped, defendant's car was about 10 feet from its left rear end. At this same moment he could see for the first time the girls' heads; 'they just started to come out.' As soon as he saw them 'poke their heads out' he 'slammed' or 'jammed' on his brakes and swerved to the left. The two girls ran out in front of him from in front of the truck when he first saw them. His main concern was to stop the car somehow or other, to get out of the way, so that it would not hit them. His car struck the two girls. He had not seen the girls standing at the corner of the intersection nor until their heads appeared coming past the front of the truck.

Plaintiff was familiar with the highway and the intersection and knew that there was a marked crosswalk on the north side and an unmarked crosswalk on the side where she was crossing. She said she knew that beside the truck there might well be other vehicles using the roadway there at the same time.

Plaintiff challenges the judgment and order upon three grounds:

1. That the record is barren of any evidence to support the verdict and judgment.

2. That the trial court committed prejudicial error in instructing the jury, at the request of respondents, on the doctrine of 'imminent peril.'

3. That the record shows that respondents were negligent and appellants free of contributory negligence as a matter of law.

We have concluded that none of plaintiff's contentions can be sustained. The case was a proper one to submit to the jury and the verdict has substantial support in the evidence. The instruction was an accurate statement of the law and was appropriate to be considered by the jury in relation to both the issue of negligence and the issue of contributory negligence.

It is true, as argued by plaintiff and conceded by defendant, that a violation of either subsection (a) or (b) of section 560 of the Vehicle Code would constitute negligence as a matter of law in the absence of reasonable explanation for such conduct. Satterlee v. Orange Glenn School District, 29 Cal.2d 581, 177 P.2d 279; Ornales v. Wigger, 35 Cal.2d 474, 218 P.2d 531; Gray v. Brinkerhoff, 41 Cal.2d 180, 258 P.2d 834.

Section 560 of the Vehicle Code reads as follows: '560. Pedestrians' Right of Way at Crosswalks. (a) The driver of a vehicle shall yield right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.

'(b) 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 such stopped vehicle.'

In this case, the defendant offered an explanation which the trial judge thought presented an issue of fact for the jury. At plaintiff's request, the court read to the jury the provisions of section 560 of the Vehicle Code (Instruction No. 10 requested by plaintiff), and also instructed them that 'A violation of law is of no consequence in this action unless it was the proximate cause of the injuries found by you to have been suffered by the plaintiff.' (Instruction No. 13 requested by plaintiff.)

In Driver v. Norman, 106 Cal.App.2d 725, 236 P.2d 6, the court rejected plaintiff's contention that defendant was negligent as a matter of law and held that although a violation of section 560 of the Vehicle Code could constitute such...