George v. Kleinbrodt

• Decision Date: 30 July 1962
• Court: California Court of Appeals Court of Appeals
• Parties: Peter A. GEORGE, Plaintiff and Appellant, v. Leo KLEINBRODT, Defendant and Respondent. Civ. 25794.

Page 822

23 Cal.Rptr. 822

206 Cal.App.2d 224

Peter A. GEORGE, Plaintiff and Appellant, v. Leo KLEINBRODT, Defendant and Respondent.

Civ. 25794.

District Court of Appeal, Second District, Division 1, California.

July 30, 1962.

Ralph Sadler Rosen, Los Angeles, for appellant.

Dryden, Harrington, Horgan & Swartz, by Vernon G. Foster, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from a judgment upon a jury verdict in favor of defendant in an action for damages for personal injuries.

A resume of some of the testimony and evidence which the jury could have believed to be true is as follows: Kleinbrodt drove his 1954 Plymouth two-door sedan westerly on Wilshire Boulevard to a point approximately 100 feet westerly of the intersection of Wilshire Boulevard and Robertson Street (which intersection is controlled by tri-light signals on each of the four corners), where he parked the same on the north side of Wilshire Boulevard. At the place or area where Kleinbrodt parked his car the area is a business zone and postings indicate the speed limit is 25 miles per hour. The boulevard is divided into three westbound traffic lanes; each of the two nearest the double center line is 10 feet in width, the lane nearest the curb is 15 feet wide, which lane includes a marked or designated metered parking area. The parking spaces are marked off in pairs, each pair being 20 feet in length, and the pairs are separated by an 8 foot interval. The width of the space is 7 feet and the space is delineated by a painted white line from a point close to the curb into Wilshire Boulevard. In other words, the westbound portion of the boulevard is 35 feet in width overall. The two center lanes are each 10 feet wide and the third lane is made up of a parking area 7 feet in width and an area 8 feet in width for vehicular traffic. The type of car with which we are concerned in this case is about 6 feet to 6 feet 4 inches in width. The curb at the point where Kleinbrodt parked was about 13 inches above the gutter and as a consequence at that point the passenger side of a car cannot ordinarily be opened over the curb. Persons parking cars are permitted to park 1 foot away from the curb.

Kleinbrodt parked in the westerly section of a pair of spaces. The rear of his car was near the eastern end of the space which he occupied. The right side of his car was but a few inches from the curb. As a consequence Kleinbrodt's wife and son, who were with him, got out of the Kleinbrodt car on the driver's side. The Kleinbrodt family apparently completed some shopping in the area and within a short time returned to their parked car. There were cars parked in front and to the rear of the Kleinbrodt car. Kleinbrodt stepped off of the curb into the street preparatory to getting into the driver's seat of the automobile. As he walked along he looked for approaching traffic and it was clear. Kleinbrodt got into the driver's seat and prepared to move the car a short distance from the curb, to the end that his wife and child (who had remained on the sidewalk near the curb) could enter the car from the right side of the vehicle. Kleinbrodt started the motor of the car, turned on the flashing signal light indicator, put his head out of the left window and looked for traffic to the east or rear of him. He saw two cars headed westward at the Wilshire-Robertson intersection, such cars being located in the two lanes nearest the center line. He did not see the plaintiff on his motorcycle if he was there. Kleinbrodt withdrew his head from outside of the window into the car, glanced in the rear view mirror and saw no moving traffic coming in his direction. It is apparent that Kleinbrodt had in mind that the curb height was such that his right car door could not be opened over the top of the curb and he intended to move the automobile a foot or so in order that his family could open the right door and get in. Within a matter of seconds, after looking to the rear, he began turning the front wheels to the left and moving the car away from the curb at a very slow speed, perhaps one mile per hour. When Kleinbrodt thought that the front of his car was approximately one and one-half feet from the curb (Mrs. Kleinbrodt thought the distance was about 12 inches) the plaintiff was observed in front of him falling from the motorcycle which he was riding. Kleinbrodt applied his brakes and stopped. Neither the motorcycle nor the plaintiff made contact with the Kleinbrodt's car. The automobile was mot moved and pictures were taken and introduced into evidence and this court has had the opportunity to peruse the same. There was substantial evidence to the effect that never at any time prior to plaintiff's falling from his motorcycle was the front of the Kleinbrodt car in excess of 7 1/2 feet from the curb. The plaintiff testified and he produced other witnesses. Plaintiff was a motorcycle officer of the Beverly Hills Police Department with four years' experience and was westbound at the time of the accident. He was riding a two-wheeled motorcycle, 7 feet in length, weighing about 900 pounds, with a maximum width at the handle bars of 3 feet. In other words, from the center of the wheels the handle bars extended 18 inches on each side. The cycle had a rear wheel brake controlled by a foot pedal and a front wheel brake controlled by a device on the left handle bar. Plaintiff stated that he stopped his motorcycle at Wilshire and Robertson in a lane (closest to the curb) to the right of Mr. Pandorwitz's car which was in lane two. When the signal changed he started up his cycle and pulled away from the cars and in fact was 25 feet ahead of the Pandorwitz car when he reached the far side of the intersection. Plaintiff stated in effect that he reached a speed of 25 miles per hour from a standing start within a distance of 54 feet and at the same time he said he was just 'putt-putting' along. When plaintiff was about 15 to 20 feet to the east of the Kleinbrodt car, plaintiff was watching the Pandorwitz car in the side mirror located on the left handle bar. Plaintiff then or about then for the first time observed the Kleinbrodt automobile. Plaintiff said it was then headed southwesterly and the front thereof was 2 1/2 feet from the curb and moving about four to five miles per hour.

The motorcycle police of Beverly Hills are instructed to travel a safe distance from parked automobiles. Plaintiff said they were supposed to stay in the middle of the lane they were using. Plaintiff knew of the high curb situation in that area and knew too that cars parked in the area and further, that frequently drivers had to move a car from the curb area in order to permit passengers to get into their respective cars. No vehicles occupied lanes one and two to the immediate left of plaintiff at the time of the collision. Plaintiff stated that he was driving approximately 10 feet from the curb and that he was not aware of the Kleinbrodt car until he was within a car's length of it, and this in spite of the fact that he had travelled approximately 100 feet in lane three from the signal at Robertson before arriving at the point where the Kleinbrodt car was parked. Plaintiff did not see Kleinbrodt get into the automobile, nor did he see Mrs. Kleinbrodt and the boy on the curb. Plaintiff further said that he did not see the rear of the Kleinbrodt car and that he could not say whether the blinker lights on that automobile were on or not. Plaintiff stated in effect that he swerved to the left and that the motorcycle went partially out of control and he then pulled it to the right and then completely lost control of the motorcycle. Pandorwitz was at the very least a very confused witness and gave conflicting statements. He testified on one occasion that there were blinker lights operating on the Kleinbrodt car and later stated in effect that he did not have the opportunity to look at the back of the Kleinbrodt car where the blinker lights were located. He later revised and then re-revised some of his testimony. The record also discloses that plaintiff's motorcycle laid down a 7 foot skid mark from the rear wheel of the motorcycle 8 feet to the south of the north curb of Wilshire Boulevard. The skid mark was in a comparatively straight line parallel to the curb. From the west end of the skid mark there was an interval of 11 feet followed by a scrape mark of 28 feet in length curving in a semi-circle southward to a point on line between lane two and three where the cycle came to rest. There was testimony that the easterly end of the skid mark was approximately 87 feet from the intersection of Wilshire and Robertson.

Appellant now asserts that (1) Kleinbrodt was negligent as a matter of law in starting his...