Gioldi v. Sartorio

• Decision Date: 13 July 1953
• Court: California Court of Appeals Court of Appeals
• Parties: GIOLDI v. SARTORIO et al. Civ. 15471.

Page 62

259 P.2d 62

119 Cal.App.2d 198

GIOLDI v. SARTORIO et al.

Civ. 15471.

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

July 13, 1953.

Rehearing Denied Aug. 12, 1953.

Hearing Denied Sept. 10, 1953.

Dana, Bledsoe & Smith, San Francisco, Fred K. Howell, Jr., San Francisco, of counsel, for appellants.

Hoberg & Finger, San Francisco, John E. Castagnetto, Daly City, for respondent.

DOOLING, Justice.

Defendants appeal from a judgment for plaintiff following a jury verdict. Plaintiff who was walking on her right side of Market Street in Daly City, was struck from behind by an automobile driven by one of the defendants. In the block where this casualty occurred there are no sidewalks, and a rather steep bank borders the side of the highway on which plaintiff was walking. It is conceded that the area is neither a business nor residence district.

The crucial point in the case bearing upon the defense of contributory negligence was whether plaintiff was violating sec. 564, Vehicle Code, when she was struck. Sec. 564 reads: 'No pedestrian shall walk upon any roadway outside of a business or residence district otherwise than close to his left hand edge of the roadway.' The roadway by definition of sec. 83, Veh. Code, 'is that portion of a highway improved, designed or ordinarily used for vehicular travel.'

There was evidence from which the jury could reasonably conclude (some of it educed from the defendant driver) that the highway was wider than the roadway, the roadway consisting of a well paved center strip and the balance of the highway consisting of shoulders on either side covered with a thinner layer of paving material. It is conceded by appellants that a pedestrian may walk on either side of a highway outside the limits of the roadway as defined in the Vehicle Code without violating sec. 564 thereof. Lesser v. McCullough, 90 Cal.App.2d 586, 590, 203 P.2d 832; Summers v. Dominguez, 29 Cal.App.2d 308, 311-312, 84 P.2d 237. However, in their closing brief appellants argued for the first time that whether a portion of the highway is outside the roadway is a question of fact and that the instructions given on the subject by the trial court must have misled the jury into the belief that at the scene of the accident there was a portion of the highway which they must find was outside the roadway. The argument is captious, which probably accounts for the fact that it did not occur to counsel when they were preparing their opening brief. The trial court read sec. 564, Vehicle Code, to the jury, gave definitions of highway and roadway patterned on the terms of that code and further instructed the jury: 'The Statute just read to you requires that a pedestrian walk on the lefthand side of the roadway, but does not attempt to prescribe on which side of the highway he may walk.'

This is a correct statement of the rule of law taken almost verbatim from Summers v. Dominguez, supra, 29 Cal.App.2d[119 Cal.App.2d 201] at page 312, 84 P.2d 237, and cannot be construed as indicating any opinion on the facts. If appellants desired a more specific or elaborate instruction on the subject it was incumbent upon them to request it. Ornales v. Wigger, 35 Cal.2d 474, 479, 218 P.2d 531; Townsend v. Butterfield, 168 Cal. 564, 569, 143 P. 760; Ohran v. County of Yolo, 40 Cal.App.2d 298, 307, 104 P.2d 700; Smith v. Pacific Greyhound Corp., 139 Cal.App. 696, 705, 35 P.2d 169.

The point chiefly relied upon by appellants is their claim that the court erred in giving an instruction on the presumption of plaintiff's exercise of due care. Plaintiff testified that she had no recollection of anything which occurred between the night before her injuries and sometime after the accident when she found herself in the hospital. It is settled that: 'One who by reason of loss of memory is unable to testify concerning his conduct at and immediately before the time of the accident is entitled to invoke' the presumption to the same extent and subject to the same conditions as apply where the conduct of a decedent is in question. Scott v. Burke, 39 Cal.2d 388, 394, 247 P.2d 313. The court carefully qualified the instruction on the presumption of care by instructing the jury that the presumption would only arise 'if * * * you find * * * that as a result of the accident plaintiff was deprived of her memory of events leading up to such accident.' Under the circumstances of this case this instruction was properly given.

The only eyewitness to the conduct of plaintiff immediately preceding the accident was the defendant driver. All the cases agree that his testimony given under sec. 2055, Code Civ.Proc., does not affect the operation of the presumption. Smellie v. Southern Pacific Co., 212 Cal. 540, 559, 299 P. 529. Plaintiff called one witness, Williams, who testified that he was about 100 feet away when he heard the impact. He saw the headlights of the automobile but did not see the automobile strike plaintiff and he did not see plaintiff at any time before the impact. Plaintiff also called three police officers who arrived after the accident and could not testify to any observation of plaintiff's precedent conduct. One of these officers on cross-examination testified to an oral statement made to him by plaintiff two days later in the hospital: 'She stated * * * she was walking west on Market Street, on the north side, as she has been for years, as close to the edge of the road as possible, and did not see or hear a car approaching, when all of a sudden she was struck and thrown to the pavement. That is all she remembers.'

At the time this statement was made the officer testified: 'I could not talk to her for a couple of days. And then, when I did talk to her, she gave me a kind of a hazy statement. She was not in her true senses, I guess, yet.'

Appellants take the position 'that plaintiff was not entitled to the weight of the presumption of due care because the testimony of the police officers, Mr. Williams and the plaintiff's...