Opinion
Hearing Granted by Supreme Court Aug. 2, 1928.
Appeal from Superior Court, Los Angeles County; Charles Monroe, Judge.
Action by W. F. Filson against N.J. Balkins for damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed. COUNSEL
Haas & Dunnigan, of Los Angeles, for appellant.
Jones, Wilson & Stephenson, of Los Angeles, for respondent.
OPINION
HAZLETT, Justice pro tem.
Plaintiff was given judgment upon the verdict of a jury in the sum of $1,500 on account of personal injuries he suffered while walking across a public highway, in a collision between his person and a Willys-Knight sedan automobile driven by defendant. Defendant appeals, contending that the evidence does not support the verdict or judgment, in that it is established that plaintiff was guilty of contributory negligence as a matter of law. Defendant made a motion for a new trial, which was not presented in time, and was denied by operation of law.
The only controversies in the evidence are as to the speed at which defendant’s automobile was traveling at the time of the accident and whether plaintiff looked to his left before he started to walk across the highway.
The evidence shows the following facts without conflict: Plaintiff was employed by the Midway Gas Company, and in charge of a crew of men repairing a gas main located under the pavement of the state highway at a point about 2 miles south of Newhall. This highway ran north and south, and it was paved with a pavement 21 feet wide. The men were digging holes at the west of the pavement and tunneling under the pavement about 6 feet to the joints of the gas main. The highway was straight, unobstructed, and down grade for a distance of about 500 feet from a curve south of the point. Preceding the collision, machines were passing, some at a rapid rate and some slow. Just before the collision, plaintiff walked across the pavement from the west to the east and procured two flags for use in warning drivers of automobiles and trucks passing from traveling over the tunneled portion of the pavement. Intending to return to the west side of the pavement, plaintiff looked to the north and to the south to see if any automobiles were approaching, and observed one coming from the north and one from the south, and he stood off the pavement, to its east until they passed. He again looked each way, and saw no machine coming from the north, but observed defendant’s machine approaching down the hill from the south, at the curve, about 400 or 500 feet distant (he also testified that he had a faint recollection of having seen the machine), and he testified that he started right away to cross the pavement. He walked in a diagonal direction, northwesterly at an average gait, but did not again look to the south. In fact, he looked down at the pavement until he reached a point 3 or 4 feet westerly on the center line of the pavement when he looked north to see if any machines were approaching from that direction. He or his witnesses heard no warning sound from any automobile or from the approach of defendant’s machine before the collision occurred. His sight and hearing were good. When defendant’s machine arrived at a point about 50 feet south of the place of collision, it was on the east half of the pavement and defendant thereafter swerved it toward and partly upon the west half of the pavement to go around and in front of plaintiff. When the collision occurred, the automobile had reached about the center of the pavement, a little more than half of the machine being west of the center line. Plaintiff’s head came in contact with-the glass in the right front door of the automobile, breaking the glass, and throwing it inside the machine, and the door handle was bent toward the rear. Plaintiff was thrown to the pavement about its center, with his body lying partly over on its west half, and his injuries consisted of a laceration over his left eye, one on top of his head on the left side, a wound on the back of his head, fractures of three bones on his right foot, and numerous contusions. The automobile proceeded 20 to 25 feet beyond the place of collision, stopped for a moment, and was then driven a short distance beyond. Skid marks were seen at the place, commencing on the easterly half of the pavement a few feet south of the place of collision, swerving toward the west until they were wholly upon the west half, and, in all, were about 20 feet long. One of plaintiff’s witnesses, who was working about 50 feet north of the place of collision stated that in his opinion defendant’s machine was traveling at about 30 miles per hour when the accident happened. Defendant and a passenger he had in his machine testified that when defendant’s machine arrived about 100 feet south of the place of collision they observed plaintiff standing just easterly of the pavement and watched him all the time thereafter until the collision occurred; that the machine was traveling 12 to 15 miles per hour; that plaintiff did not look south toward the oncoming machine, and, when it was about 12 to 15 feet from plaintiff, plaintiff started to walk across the pavement and continued to the time of the collision, looking down, going in a northwesterly direction at a fair gait; that defendant sounded his horn when he first observed plaintiff and again when plaintiff started out on the pavement; that, in order to avoid striking plaintiff, defendant applied his brakes and swerved his machine toward and partly upon the west half of the pavement to go around him; that plaintiff walked into the right front door of the machine; and that at the time of the collision the machine was traveling 5 to 10 miles per hour; and defendant testified that traveling at 12 miles per hour he could stop his machine in 25 to 30 feet.
Negligence is a question of fact for determination by the jury, but it becomes a question of law for the court when the evidence is such that it will support no other legitimate inference except that plaintiff was guilty of negligence which contributed to his injury. It is never a question of pure law. The decision of the question by the court is a decision of fact. When the evidence is of such a character that the court is impelled to say that the record is not in conflict on the facts, and that from the facts reasonable men can draw but one inference pointing unerringly to the conclusion that plaintiff’s negligence contributed to his injury, then the law forbids his recovery. To warrant the court in determining that plaintiff was negligent as a matter of law, it is not necessary that there should be an absence of conflict in the evidence, but, if there be a conflict, it must not be a substantial one. However, if the conceded facts are such that reasonable minds might differ upon the question, it is one of fact for the jury. Seller v. Market-Street R. Co., 139 Cal. 268, 271, 72 P. 1006; Reaugh v. Cudahy Packing Co., 189 Cal. 335, 339, 343, 208 P. 125; Smith v. Southern Pacific Co. (Cal. Sup.) 255 P. 500; Moss v. Boynton Co., 44 Cal.App. 474, 476, 186 P. 631; Finkle v. Tait, 55 Cal.App. 425, 431, 203 P. 1031; Carey v. P. Gas & Electric Co., 75 Cal.App. 129, 134, 242 P. 97. "The question of contributory negligence must be determined without regard to any negligence on the part of defendant." Moss v. Boynton Co., supra; Mayer v. Anderson, 36 Cal.App. 740, 742, 173 P. 174; Lord v. Stacy, 68 Cal.App. 517, 521, 229 P. 874. While it has been held that a pedestrian crossing a street may presume that drivers of automobiles will use due care and caution to avoid striking them (Dullanty v. Smith [Cal. Sup.] 265 P. 814) reliance upon the presumption does not excuse one who is himself negligent. Truitner v. Knight (Cal.App.) 257 P. 447.
The facts in this case are such as to fairly raise the question whether plaintiff was guilty of contributory negligence as a matter of law. Viewing the testimony of plaintiff and his witnesses most favorably to plaintiff, it appears therefrom that plaintiff saw defendant’s automobile at least 400 feet distant, and without again looking in the direction from which the automobile was approaching, but looking straight ahead or down (plaintiff testified he looked in the direction he was walking, and one of his witnesses said he was looking down as he walked), defendant proceeded to cross the pavement, walking at an ordinary pace, with his back partly toward the automobile, and that the collision occurred between his head and body and the door of the moving automobile. By calculation it appears that about one and one-half times the miles traveled per hour gives the feet per second, and at 30 miles per hour it required about 9 seconds for the automobile to travel the 400 feet; and, if plaintiff did not loiter, he walked at a pace of about 4 miles per hour, and in the 9 seconds he should have walked about 54 feet or past the west edge of the pavement to a position of safety. Apparently he walked about 19 feet from the east side of the pavement to the point of collision, the automobile was about 130 feet distant when he started across, and there was a period of 5 or 6 seconds between the time when he started to cross and the time of collision. From this it is evident that he did not look south immediately before he started to cross, and he proceeded without looking for danger. According to plaintiff’s own testimony and that of his witness who saw him crossing, he did not exercise due care or ordinary care for his safety, and, he was either mistaken in saying that he looked to the south immediately before he stepped upon the pavement, or he looked and was so preoccupied that he failed to see the proximity of defendant’s automobile, and stepped out when it was too close to avoid the collision. He was not excused in either event. Lord v. Stacy, supra. The foregoing conclusions drawn from the evidence produced by plaintiff are reinforced by the testimony of defendant and the passengers in his machine; there being little if any substantial conflict in the evidence of the parties. While it is true and that one of plaintiff’s witnesses, who was about 50 feet north of the place of collision, testified that in his judgment the machine was traveling about 30 miles per hour; on the other hand, defendant and his passenger testified that the speed was 12 to 15 miles per hour, and that the machine was 12 to 15 feet from plaintiff when he started to cross. Defendant said his machine could be stopped in about 25 to 30 feet when traveling at 12 miles per hour, and plaintiff’s witnesses testified that the skid marks were about 15 to 25 feet long, and that the machine proceeded about 25 feet beyond the place of collision before it stopped. In fact, plaintiff’s evidence tends to corroborate the evidence produced by defendant in relation to the speed of the machine as well as the manner in which it was driven and its proximity. Had the machine not swerved to the west side of the pavement, plaintiff would have been hit by its front end and probably killed.
It is the duty of a pedestrian to use due care before proceeding to cross a highway where vehicles frequently pass and repass, to see that he is not in immediate danger in attempting to cross, and he is required to look in both directions to see if any are approaching, and, if so, their rate of speed and proximity. Niosi v. Empire Steam Laundry, 117 Cal. 257, 49 P. 185. The observation of due care on the part of a pedestrian is not fully performed by merely looking to the left or right as he steps upon the street. It is imperative upon him during all the time that he is crossing, particularly if he proceeds in a diagonal course. Sheldon v. James, 175 Cal. 474, 479, 166 P. 8, 2 A. L. R. 1493; Mayer v. Anderson, supra, page 742 (173 P. 174); Atkins v. Bouchet, 65 Cal.App. 94, 223 P. 87; Moss v. Boynton Co., supra. Immediately before placing himself in a position of danger it is the duty of a pedestrian to look in the direction from which danger is to be anticipated, and this is a continuing duty, and is not met by looking once and then looking away. Moss v. Boynton Co., supra; Judd v. Webster, 50 Cal.App. 743, 747, 195 P. 929; Lord v. Stacy, supra. However, it has been held that, where a pedestrian crossing a street observed an automobile approaching from her left, half a block distant, and she continued to observe it until she reached the center of the street, when she looked to her right for vehicles approaching from that direction, that this appeared to have been reasonable prudence on her part. Wright v. Foreman (Cal.App.) 261 P. 481. The question whether or not a pedestrian is negligent is to be determined from all the facts and circumstances in evidence in the case. Reaugh v. Cudahy Packing Co., supra; Burgesser v. Bullock’s, 190 Cal. 673, 678, 204 P. 649.
Under all the circumstances shown in this case, it was plaintiff’s plain duty, when about to proceed across the pavement, to see that he was not in immediate danger from the traffic on the highway. Having observed defendant’s machine approaching 400 or 500 feet distant, it was his duty to again look for it immediately before starting to cross, and he should have looked and listened as he proceeded so as to avoid colliding with the machine; defendant exercising the common privilege of using the highway (see Judd v. Webster, supra; Niosi v. Empire Steam Laundry, supra), which he failed to do.
We hold that as a matter of law plaintiff was guilty of negligence which contributed proximately to his injuries.
No attention is given to the question whether defendant was negligent in the operation of his automobile, for the reason that plaintiff was guilty of negligence contributing to his injuries, and therefore cannot rely upon the negligence of defendant, if any; and, for the same reason, we given no consideration to the question whether plaintiff had the right to rely upon any presumption to the effect that defendant would use due care to avoid a collision.
The judgment is reversed.
We concur: CRAIG, Acting P. J.; THOMPSON, J.