Conjorsky v. Murray

• Decision Date: 19 September 1955
• Citation: 287 P.2d 505,135 Cal. App. 2d 478
• Court: California Court of Appeals
• Parties: Minnie CONJORSKY, Plaintiff and Respondent, v. Gladys Y. MURRAY et al., Defendants and Appellants. Civ. 5100.

Page 505

287 P.2d 505

135 Cal.App.2d 478

Minnie CONJORSKY, Plaintiff and Respondent, v.Gladys Y. MURRAY et al., Defendants and Appellants.

Civ. 5100.

District Court of Appeal, Fourth District, California.

Sept. 19. 1955.

Parker, Stanbury, Reese & McGee, Los Angeles, for appellants.

Saul Ruskin and David M. McGahey, Palm Springs, for respondent.

SHELL, Justice pro tem.

Respondent was plaintiff in an action filed in the superior court of Riverside county.The undisputed facts are briefly as follows.Plaintiff, a woman 80 years of age and in a somewhat feeble condition, was walking east along the sidewalk on the south side of Amado Street in Palm Springs, Riverside county, in the late afternoon of May 11, 1953.DefendantsGladys Murray and her husband, William Murray, were the owners of a market on the property at the southwest corner of Amado Street and Indian Avenue in Palm Springs.Immediately to the west of the market building there was a parking lot upon which there was room to park two or three cars comfortably.Generally, this lot was used by the Murrays for the purpose of parking the delivery truck used in their business and for parking their own car or that of an employee of the market.A private driveway led from this parking space across the sidewalk, on the south side of Amado Street, to the street.

Charles M. Busby, a defendant, was an employee of the Murrays, one of his duties being to deliver grocery orders to market customers by the use of the panel delivery truck which, on the day in question and prior to the accident here involved, was parked with the front end thereof headed away from the street and the rear end about 3 or 4 feet south of the south side of the sidewalk along which plaintiff was proceeding.Busby, intending to make a delivery to a customer, placed a carton of groceries in the delivery truck and backed the truck out of the parking space, a distance of 3 or 4 feet, to the sidewalk, and then, without stopping, continued across the sidewalk.While he was doing so, contact occurred between plaintiff pedestrian and the truck, resulting in serious personal injuries to plaintiff.

Plaintiff's complaint alleged negligent conduct on the part of the defendants.The answer denied negligence, and also raised the defenses of contributory negligence and unavoidable accident.The case was tried before a jury, which, on June 29, 1954, returned a verdict in favor of the defendants and against the plaintiff.Plaintiff moved for a new trial on all the statutory grounds and on October 14, 1954, the court granted the motion without specifying that it was granted for insufficiency of the evidence to support the verdict of the jury.Under that circumstance, an appellate court is foreclosed from reviewing that question.Code Civ.Proc. § 657, subd. 7.

The record does not contain a transcript of the argument on the motion for new trial.From the affidavits filed in support of the motion, however, we conclude that plaintiff urged upon the trial court only four of the noticed grounds enumerated in her notice of intention to move for a new trial as follows:

1.Irregularity in the proceedings of the court, the jury and the adverse party.

3.Accident and surprise, which ordinary prudence could not have guarded against.

6.That said verdict and judgment are against the law.

7.Error in law, occurring at the trial and excepted to by plaintiff.

The irregularities urged upon the trial court apparently consisted of claimed misconduct of counsel for the defendants.We assume that the accident and surprise urged by plaintiff arose from the claim that the interpreter used to interpret the testimony of the plaintiff inadvertently, because of inaccuracies in such interpretation, misled the jury as to plaintiff's testimony as to material facts; that such misinterpretation was not discovered by plaintiff's counsel until after the completion of the trial.The grounds enumerated as numbers 6 and 7 may be by us considered together.

The respondent urged upon the trial court, and here urges, that prejudicially erroneous instructions were given to the jury by the trial court.The attack on the instructions of the trial court were directed first against an instruction prepared by the court and given on its own motion as an adaptation of B.A.J.I. 201-E, as follows:

'While it is the duty of both the driver of a motor vehicle crossing a public sidewalk and a pedestrian using a public sidewalk, to exercise ordinary care, that duty does not require necessarily the same degree of caution from each.The driver of a motor vehicle crossing a public sidewalk, when ordinarily careful, will be alertly careful, will be alertly conscious of the fact that he is in charge of a dangerous instrumentality capable of projecting into serious consequences any negligence of his own.Thus, in crossing a public sidewalk, his caution must be adequate to that responsibility as related to all the surrounding circumstances.A pedestrian, on the other hand, has only his own physical body to manage and with which to set in motion a cause of injury.A pedestrian, in using a public sidewalk traversed by a driveway, will be alertly conscious that vehicles might use such driveway.And the caution required of the pedestrian is measured by the possibilities of injury apparent to him in the conditions at hand, or that would be apparent to a person of ordinary prudence in the same position.'

B.A.J.I. 201-E reads as follows:

'While it is the duty of both the driver of a motor vehicle and a pedestrian, using a public roadway, to exercise ordinary care, that duty does not require necessarily the same degree of caution from each.The driver of a motor vehicle, when ordinarily careful, will be alertly conscious of the fact that he is in charge of a machine capable of projecting into serious consequences any negligence of his own.Thus his caution must be adequate to that responsibility as related to all the surrounding circumstances.A pedestrian, on the other hand, has only his...