Hom v. Clark
| Decision Date | 30 October 1963 |
| Citation | 221 Cal.App.2d 622,35 Cal.Rptr. 11 |
| Parties | Roger HOM, Plaintiff and Respondent, v. Lee N. CLARK, Defendant and Appellant. Paul H. ONG, Plaintiff and Respondent, v. Lee N. CLARK, Defendant and Appellant. Civ. 20557, 20558. |
| Court | California Court of Appeals Court of Appeals |
Dunne, Bledsoe, Smith, Phelps, Cathcart & Johnson, San Francisco, Robert A. Seligson, San Francisco, of counsel, for appellant.
Lewis & Fonnesbeck, Sunnyvale, William B. Boone, Santa Rosa, of counsel, for respondents.
This is an appeal by defendant from a judgment in favor of plaintiffs, Paul H. Ong and Roger Hom, after a jury verdict in consolidated personal injury actions arising out of an automobile-pedestrian accident.
The facts connected with the happening of the accident are essentially as follows: 1 Plaintiffs were crossing Broadway at its intersection with Grant Avenue in San Francisco in the early morning of February 23, 1958, when they were struck by an automobile driven by defendant. Plaintiffs had spent the evening of the accident in Chinatown celebrating the Chinese New Year. Both plaintiffs admitted to having had several drinks over the course of the evening. After having something to eat in a restaurant plaintiffs proceeded along Grant Avenue, on the left hand side of the street, to Broadway. Ong's last recollection of the events of the evening was crossing Pacific Avenue, one block away from Broadway where the accident occurred. Hom, on the other hand, testified that when he and Ong approached the corner of Broadway and Grant Avenue, he saw that the signal light at the intersection of Broadway and Columbus Avenue was 'red' for Broadway traffic. (The intersection of Broadway and Columbus is east of the Broadway-Grant intersection.) Hom testified that at that time he said "Let's proceed and walk across. * * *" He also stated that he did not see any cars headed in a westerly direction on Broadway waiting for the signal to change. Hom further testified that he and Ong started to cross Broadway and that after he passed the center of Broadway, the next thing he knew he was hit.
Defendant testified that on the night of the accident he and his wife had dinner at home and that they each had two cocktails between 8 p. m. and 8:30 p. m.; that they then went to a movie, after which they drove to Fisherman's Wharf and thence to Telegraph Hill, where they parked for awhile; that then they went to a restaurant near the corner of Broadway and Columbus Avenue; that upon leaving the restaurant he started driving west on Broadway toward the Broadway and Columbus intersection; that he stopped at Columbus Avenue for a red light and that when it turned green he proceeded across the intersection at a speed of approximately 25 miles per hour; that he first saw plaintiffs when they were a car length in front of him; that, according to his estimate, they were walking about 4 to 6 feet west of the property line on the west side of Grant Avenue; that he swerved his car to the left and applied his brakes; that his car struck plaintiff; and that his car travelled from 15 to 20 feet after the impact.
An investigating police officer testified that defendant's automobile travelled 39 feet 4 inches from the point of impact until it came to rest; and that the point of impact was within the prolongation of the westerly curb and property lines of Grant Avenue.
The basic contentions of the respective parties are as follows: Plaintiffs claim that they were crossing in an unmarked crosswalk and that therefore defendant was required to yield the right of way to them. 2 Defendant maintains that as a matter of law there was no crosswalk where plaintiffs were crossing and that they should have yielded the right of way to defendant's automobile. 3 Defendant also contends that plaintiffs were prohibited from crossing where they did by signs which plainly stated they should not cross there and by other action of the local authorities in designating the Grant Avenue, Broadway, and Columbus Avenue intersection as a "single intersection.' * * *' The specific questions raised by this appeal are hereinafter set out in the headings of this opinion. All references to the Vehicle Code, unless otherwise indicated, are to the statute as it read as of February 23, 1958, the date of the accident.
No. It is undisputed that there was no marked crosswalk where plaintiffs were crossing at the time of the accident. Plaintiffs contend that an unmarked crosswalk existed across Broadway within the prolongation of the boundary lines of the sidewalk on the west side of Grant Avenue pursuant to the provisions of Vehicle Code, section 85 4 in effect at the time of the accident, providing as follows: "Crosswalk' is either: (a) That portion of a roadway ordinarily included within the prolongation or connection of the boundary lines of sidewalks at intersections where the intersecting roadways meet at approximately right angles, except the prolongation of any such lines from an alley across a street. (b) Any portion of a roadway distinctly indicated for pedestrian crossing by lines or other markings on the surface. (c) Notwithstanding the foregoing provisions of this section, there shall not be a crosswalk where local authorities have placed signs indicating no crossing.' [Now Vehicle Code, 1959, § 275] It is likewise undisputed that Broadway and Grant Avenue meet at approximately right angles. Defendant contends, however, that, as a matter of law, Grant Avenue is an alley, and that accordingly there can be no prolongation of such lines from Grant Avenue across Broadway so as to create a crosswalk pursuant to section 85. Defendant's contention is based upon the provisions of section 3, subdivision (a) of the Traffic Code of the San Francisco Municipal Code (Part II, Chapter XI) 5 which defines an alley as 'A street with a roadway of less than thirty (30) feet.' It is undisputed that Grant Avenue has a roadway of 24 feet.
At the time of the accident in this case section 85 did not define 'alley', nor was the term anywhere defined in the Vehicle Code. 4a It is defendant's assertion, therefore, that the definition of alley contained in the Traffic Code is applicable to section 85. He argues that section 553 [Now Vehicle Code, 1959, § 21804] is indicative of a legislative intent to leave the definition of 'alley' to local ordinance. Section 553, in force at the time of the accident in the present case, provided as follows: 'The driver of a vehicle about to enter or cross a highway from any private road or driveway or from an alley not exceedings a width of twenty-two feet or from any alley as may be defined by local ordinance shall yield the right of way to all vehicles approaching on said highway.' (Emphasis added.) In the application of this section an alley is a roadway not exceeding a width of 22 feet, or as defined by local ordinance. There cases are cited by defendant in support of his position: Hosi v. La Vey, 102 Cal.App.2d 597, 228 P.2d 35; Hopkins v. Galland Mercantile L. Co., 218 Cal. 130, 21 P.2d 553; and Kowalski v. Shell Chemical Corp., 177 Cal.App.2d 528, 2 Cal.Rptr. 319.
Hopkins is not at all in point. The Supreme Court was there called upon to apply a local ordinance providing for crosswalks. The ordinance provided that a pedestrian should not cross a roadway other than by a crosswalk which was a portion of the roadway included within the prolongation of curb and property lines and street intersections. The ordinance in question specifically provided that an alley was a street with a roadway less than 20 feet, and that a street was the roadway set apart for public travel except alleyways. 6 There a pedestrian crossed a street in San Francisco at a point opposite an alley known as Camption Place, which was 19 feet 4 inches wide. The Supreme Court held that since Campton Place was an alley, there was no crosswalk where plaintiff was crossing and that therefore he was negligent as a matter of law. It should be noted, however, that the accident in question occurred in 1929 at a time when section 85 and its predecessor statutes had not been enacted. 7 Hopkins was, therefore, dealing strictly with a local ordinance which applied to a field in which the State had not yet legislated, and was construing a statute which was specific in its application to a local situation. 8
In Hosi, a pedestrian was injured while crossing Sixteenth Street in San Francisco at a point where it intersected with Rondel Place, between Mission and Valencia Streets. The reviewing court held that there was no crosswalk at the point of the crossing and accordingly determined that there was sufficient evidence to sustain a finding of contributory negligence on the basis that the pedestrian had crossed a street at a point outside a crosswalk. In that case, however, the parties had stipulated in the trial court that the Traffic Code of San Francisco provides that an alley is a street with a roadway of less than 30 feet. It does not appear in the opinion whether the appellate court had section 3, subdivision (a), of the Traffic Code before it, or whether said section was considered in relation to section 85. Moreover, the opinion does not discuss or mention the effect or applicability of any Vehicle Code sections at all. It is apparent from a reading of Hosi that the reviewing court was proceeding on the assumption that the parties had stipulated that Rondel Place was an alley.
Kowalski does not involve a pedestrian right of way situation but the question of a right of way as between two vehicles. The appellate court was there called upon to consider the very local code section before us, i. e., section 3, subdivision (a), of the Traffic Code. The...
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