Cucinella v. Weston Biscuit Co.

• Decision Date: 12 January 1954
• Citation: 265 P.2d 513,42 Cal.2d 71
• Court: California Supreme Court
• Parties: CUCINELLA et al. v. WESTON BISCUIT CO., Inc. et al. L. A. 22855

Page 513

265 P.2d 513

42 Cal.2d 71

CUCINELLA et al. v. WESTON BISCUIT CO., Inc. et al.

L. A. 22855.

Supreme Court of California

Jan. 12, 1954.

William W. Waters and Henry F. Walker, Los Angeles, for appellants.

Hunter & Liljestrom and Harold J. Hunter, Los Angeles, for respondents.

SCHAUER, Justice.

Plaintiffs, who are husband and wife, appeal from an adverse judgment entered upon a jury verdict in their action to recover damages resulting when plaintiff wife was struck by an automobile while she was attempting to walk across San Fernando Road in the City of Los Angeles. We have concluded that no prejudicial error or miscarriage of justice is shown and that the judgment should be affirmed. (Cal.Const., art. VI, § 4 1/2.)

The accident occurred about 9:30 in the morning of April 25, 1950. The weather was clear and dry and visibility was good. Plaintiff ¹ had walked in an easterly direction halfway across San Fernando Road, a north-south highway at the point involved, some 24 feet south of its intersection with Lacy Street, and had paused at the double white line in the center of the highway, waiting for traffic to 'give me a chance' to complete the crossing. She testified that she suddenly became frightened by an oncoming truck and, without looking further at traffic, turned around in a clockwise direction and attempted to return to the westerly curb from which she had started. At a point eight or nine feet from such curb she was struck by an automobile traveling south on San Fernando and driven by defendant Smith in the course of his employment by defendant Weston Biscuit Company, Inc. Plaintiff did not remember taking any steps after her turn in the center of San Fernando, and the next she knew was when she was lying in bed in the hospital.

Defendant Smith testified that he first saw plaintiff when he was some seventy or eighty feet away from the point at which she attempted to return to the curb; that he was then traveling thirty or thirty-five miles an hour, and no cars were ahead of him; plaintiff 'ran out into the center of the street and appeared to take two or three steps past the center, then she whirled to her right and ran back towards the west curb * * * in approximately a straight line.' Defendant was startled and 'slammed on my brakes.' He continued 'to hold the brakes on' until his car stopped, and stated he was going approximately three miles an hour when he struck plaintiff. Defendant's tires 'laid down' seventy-two feet of 'skid-marks' in the street, from which an expert witness computed that the minimum speed the car was traveling 'when it first started to lay down skid-marks' was thirty-six miles an hour.

The drivers of two cars which were traveling immediately behind defendant and in the same (right hand or 'curb') lane of traffic both testified that all three cars were traveling approximately thirty to thirty-five miles an hour, and both drivers saw plaintiff suddenly turn to her right in the center of San Fernando and start to run back in a straight line to the curb. One of the drivers testified that 'There was a lot of heavy traffic * * * there on San Fernando Road that morning.' Other evidence established that morning traffic on San Fernando is 'heavy' during the period from 8:00 to 10:00 o'clock.

Plaintiff's first contention on appeal is that the trial court erred in admitting evidence of the 'average speed' traveled by vehicles in the area of the accident, in the face of testimony by a police officer working in the area that San Fernando Road was posted with 25-mile-an-hour speed limit signs at points approximately one and one-half miles north and one and one-quarter miles south of the Lacy Street intersection. On cross-examination by counsel for defendant the officer was permitted to also testify, over objection by plaintiff, that he would 'estimate' that 'the average speed usually traveled at that time by motorists' was 'about 30 miles an hour along there.' Other evidence in the record discloses that for some five years immediately preceding the accident plaintiff had been intermittently employed in a laundry at the San Fernando and Lacy intersection, and that defendant drove 'up and down San Fernando' on an average of several times a week and thus was also familiar with the area in which the accident occurred. Plaintiff's arguments appear to be predicated upon the assumption that the evidence as to average speed of traffic in the area was offered by defendant solely to excuse his own conduct in driving at a rate admittedly in excess of the posted limits. However, as in Fowler v. Key System Transit Lines (1951), 37 Cal.2d 65, 68, 230 P.2d 339, defendant pleaded that plaintiff was herself guilty of negligence proximately contributing to her injuries. Under such circumstances and in view of the undisputed fact that plaintiff attempted to return to the curb without looking for traffic which might be approaching, it appears that here, as in the Fowler case, the evidence of custom bore on the issue of contributory negligence and was 'admissible as a part of the res gestae for the purpose of giving to the jury full knowledge of all the facts and circumstances which existed at the time and place of the accident, which were known to the parties, so as to permit the jury to pass upon the question of whether plaintiff conducted himself as an ordinary and reasonable person would have conducted himself in the light of all of the circumstances.' (Muir v. Cheney Bros. (1944), 64 Cal.App.2d 55, 63, 148 P.2d 138, quoted at page 69 of 37 Cal.2d, at page 342 of 230 P.2d of Fowler v. Key System Transit Lines, supra.)

Plaintiff next urges error in the trial court's refusal to permit her to prove that during her employment by the laundry she as well as other laundry employes had customarily crossed San Fernando at the point here in question, that formerly a crosswalk had been marked there with white lines, and that a marked crosswalk had been authorized and directed at the point by 'competent city authority.' However, other testimony showed that between 125 and 150 pedestrians crossed San Fernando Road daily at the point between 7 a. m. and 6 p. m., that some six months prior to the accident San Fernando Road had been resurfaced, and that at the time of the accident two rows of metal buttons extended out from the west curb some seven to 12 feet into the roadway which was 56 feet wide. Moreover, following objection by defendant's counsel to a question put by plaintiff's attorney as to how far the buttons extended out into San Fernando before it was re-surfaced, and the attorney's statement that the witness would answer that the 'metal markers extended completely across the street,' the court ruled that 'I will permit you to ask him if the buttons had previously gone across the street, or had at the time it was re-surfaced. * * *' Although the record does not indicate that plaintiff's counsel thereafter took advantage of the court's ruling, it is apparent that plaintiff is not in a position to complain, since opportunity was thus provided her to prove that a marked crosswalk formerly existed. Plaintiff cites no authority and none has been discovered supporting her claim that although a crosswalk actually was not marked at the time of the accident and had not been during the previous six months, she should have been permitted to prove that a marked crosswalk had been authorized and directed by 'competent city authority.' On the record we perceive no error in the rulihg. Unless an authorized marked crosswalk is actually marked the mere fact that it has been authorized cannot affect the duties of persons using the street.

Finally, plaintiff contends that error prejudicial to her case resulted from the court's refusal to give the following two instructions requested by plaintiff by number (Nos. 201-E and 102-A; see paragraph (a) of Rule 16, Rules for Superior Courts, 33 Cal.2d 7) from 'California Jury Instructions, Civil':

No. 201-E: '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 amount ² 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 own physical body to manage and with which to set in motion a cause of injury. While, usually, that fact limits his capacity to cause injury, as compared with a vehicle driver, still, in exercising ordinary care, he, too, will be alertly conscious of the mechanical power acting, or that may act, on the public roadway, and of the possible, serious consequences from any conflict between himself and such forces. And the caution required of him 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.'

No. 102-A: 'Inasmuch as the amount of caution used by the ordinary prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care the amount of caution required will vary in accordance with the nature of the act and the surrounding circumstances. To put the matter in another way, the amount of caution required by the law increases as does the danger that reasonably should be apprehended.'

At defendants' request, the court did instruct as follows: 'It is the duty of every person using a public highway, whether a pedestrian or the driver of any kind of vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to avoid a collision,' and that 'The law imposes upon the operator of any...