Jeffs v. La Gore

• Decision Date: 01 March 1955
• Citation: 131 Cal.App.2d 181,280 P.2d 140
• Court: California Court of Appeals Court of Appeals
• Parties: Ernest A. JEFFS, Plaintiff and Appellant, v. Harold Glen LA GORE, Defendant and Respondent. Civ. 4905.

Page 140

280 P.2d 140

131 Cal.App.2d 181

Ernest A. JEFFS, Plaintiff and Appellant, v. Harold Glen LA GORE, Defendant and Respondent.

Civ. 4905.

District Court of Appeal, Fourth District, California.

March 1, 1955.

Hearing Denied April 27, 1955.

Dorsey, Bultman & Bianchi, Bakersfield, for appellant.

Mack, Bianco & King, Bakersfield, for respondent.

GRIFFIN, Justice.

A jury verdict for defendant was obtained in an action by plaintiff and appellant, a pedestrian, against defendant and respondent, driver of an automobile, in an intersection accident, resulting from a collision of defendant's car with the pedestrian in a marked cross-walk.

The questions presented are the sufficiency of the evidence to support the verdict, and claimed errors in giving and refusing certain instructions.

About 10 a. m. on October 17, 1951, plaintiff, then about 77 years of age, was attempting to cross 18th Street at M Street, in Bakersfield. 18th Street runs in a general east-west direction and M Street in a north-south direction. Each street is 54 feet 6 inches in width. 18th Street is a through boulevard and stop signs are indicated for traffic entering it from M Street. 18th Street is divided by a center white line and there are painted white-line cross-walks 14 feet wide.

Plaintiff testified he was standing on the curb at the northwest corner of the intersection and looked in both directions for approaching traffic before he stepped into the street to go to the southwest corner of the intersection, walking in the center of the cross-walk indicated, and that no cars were noticed by him approaching from the east. He testified that as he was almost to the center line of 18th Street (the evidence is not clear as to the spot but indicates that it was between 3 and 6 feet north of the center line) he stopped and gave a car (the Waters car) approaching from the west, the 'highball to go on through', and that that car passed in front of him on the south side of 18th Street near the center line. He then testified that he, at that time, looked to the east when he heard the brakes screech on a car (defendant's car) approaching him from the east and traveling on the north side of 18th Street near the center line; that it was then 10 or 15 feet from him; that he tried to get out of the road by proceeding onward but could not make it, and the next thing he knew he was hit. Apparently there was no other traffic on the street near that intersection. The place of impact was fixed at a point about 3 feet north of the center line and in the cross-walk. Plaintiff suffered a broken leg and considerable other injuries.

On cross-examination defendant offered in evidence plaintiff's deposition in which plaintiff testified that he stepped from the curb out into the street 'a little ways * * * some distance * * * about 1/2 way * * * not quite to the middle * * * about 1/4 of the way across the street', and after looking in both directions he gave the Waters' car the 'highball'; that at that time, after he had taken a few steps, he heard the screeching of brakes, looked up and for the first time saw defendant's car coming from the east, and that defendant started slowing down and his car was then about 10 feet from him. He later testified therein that he thought he had seen defendant's car 'back there * * * on the street' before defendant started to put on his brakes; and he thought 'he had plenty of room to go around me'; that the first time he saw the car it was 'possibly fifteen or twenty feet east' of where he was standing. The brake skid marks commenced to show ten feet east of the cross-walk. The requirement as to stopping distance when traveling at 25 miles per hour is 58 feet. Sec. 670, Vehicle Code.

The witness Waters corroborated the plaintiff's testimony in general and he specifically stated that he did not notice defendant's car approaching on 18th Street at the time plaintiff waved him by, but after he proceeded on into the intersection, about the middle of it, he heard the squeal of brakes and, to his left, he observed a car going west on 18th Street and he immediately remembered plaintiff being in the cross-walk so he looked in his rear-vision mirror and defendant appeared to 'kind of be trying to run', and he was struck by defendant's car at a point about 6 feet north of the center line in the cross-walk; that defendant's car did not swerve to the left or right and there was about room enough for defendant's car to pass between plaintiff and the parked cars on the north side of the street.

Defendant testified he was a truck driver and was driving a Chrysler west on 18th Street near the center line at about 25 miles an hour; that as he approached the intersection he saw something flash to his right and thought it was a car approaching; that he looked back and 'I was about in the middle of the block by that time' (he indicated a place on a diagram marked 'L-1'). The diagram is not before us and it is difficult to determine where that place was, but from the testimony that followed it indicates that the witness meant the middle of the intersection rather than block. He testified that at that point and at that time he saw plaintiff just to the right of his right front fender walking 'medium' with his face looking to the west; that he applied his brakes as soon as possible but was not able to stop in time; that he believed he was traveling about 10 miles per hour when his car hit plaintiff who was then about 'midline' in front of defendant's car hood. He then testified he was looking straight ahead at all times until he momentarily glanced away, as indicated, and that he 'was not in no particular hurry looking back'; and that there were no cars or other obstructions between his car and plaintiff at any time.

Police officers indicated there were about 35 feet of skid marks from the front wheels and 25 feet from the rear wheels of defendant's car in a straight line, commencing 10 feet east of the cross-walk and the left-hand marks were about 18 inches north of the center line of 18th Street.

Immediately after the accident defendant told the officers about the same story here related except the part about defendant's momentarily glancing away. They said that defendant gave no reason for not seeing plaintiff in the cross-walk at that time. He further testified he had a conversation with plaintiff at the hospital and plaintiff told him that as he was about to cross 18th Street he saw a vehicle 'approaching the intersection' from the east; that it was not then in the intersection; that he felt sure he had time to go across the street before it arrived and did not know the car was going to hit him until it did. There was expert testimony as to how many feet per second a car would go traveling at various speeds.

It is apparent from the evidence that defendant was guilty of negligence in not keeping a proper look-out ahead, in not keeping his car under proper control, and in not anticipating the presence of a pedestrian in the cross-walk and failing to yield the right of way. Secs. 505 and 560(a), Vehicle Code; Gray v. Brinkerhoff, 41 Cal.2d 180, 258 P.2d 834.

Defendant alleged contributory negligence of plaintiff. There was sufficient evidence, if believed by the jury, that plaintiff was guilty of contributory negligence which would bar a recovery. Kirk v. Los Angeles Ry. Corp., 26 Cal.2d 833, 161 P.2d 673, 164 A.L.R. 1; Edwards v. McCormick, 79 Cal.App.2d 800, 181 P.2d 58. The fact that a pedestrian is in a cross-walk does not necessarily establish his freedom from negligence. It is the duty of a pedestrian to exercise reasonable care while crossing a street in a marked cross-walk, and to continue to be alert to safeguard against injury, and such duty continues throughout his passage. O'Brien v. Schellberg, 59 Cal.App.2d 764, 140 P.2d 159. The implied finding of the jury in this respect has evidentiary support.

Even in view of this finding, plaintiff contends that there were sufficient facts established to submit the last clear chance doctrine to the jury under proper instructions, and that the trial court erred in refusing plaintiff's instructions on that theory of the case.

If we take the sworn testimony of the respective parties to this action at the trial, it is clear that there was not sufficient evidence to support a finding of the jury that defendant observed the precarious position of plaintiff in the cross-walk at any time prior to the time he was in the intersection about 10 to 20 feet from plaintiff. The fact that defendant then applied his brakes for the first time indicates that it was at that point he first observed plaintiff in the cross-walk in a position of danger. There was no evidence of previous screeching of brakes or of other skid marks on the street. The only evidence that might indicate that plaintiff might have previously seen defendant comes from the testimony of the police officer in which it is claimed by him that plaintiff told him at the hospital that as plaintiff was about to cross 18th Street he saw a vehicle approaching the intersection 'from the east' and felt sure he had time to go across the street. Apparently this was when plaintiff was on the curb at the northwest corner of the intersection, and had no application to his conduct and the observations he made while in the cross-walk near the point of impact. It is apparent, then, that the evidence substantially shows that the first time defendant discovered plaintiff in this position of peril, there was no last clear chance for defendant to avoid the accident and accordingly the evidence does not substantially show that plaintiff has brought himself within the well-established rules so frequently set forth in the decisions in reference to the application of the doctrine. The trial court, under the evidence, was justified in refusing to give the proffered instruction. Poncino v. Reid-Murdock & Co., 136 CalApp. 223, 28 P.2d 932; Girdner v....