Opinion
11-7-1952
GRAY et al. v. BRINKERHOFF et al. * Civ. 19057.
Hirson & Horn and Theodore A. Horn, Los Angeles, for appellants. Joseph A. Zahradka and Robert Glines, Los Angeles, for respondents.
GRAY et al.
v.
BRINKERHOFF et al.
Nov. 7, 1952.
Rehearing Denied Nov. 24, 1952.
Hearing Granted Jan. 5, 1953.
Hirson & Horn and Theodore A. Horn, Los Angeles, for appellants.
Joseph A. Zahradka and Robert Glines, Los Angeles, for respondents.
VALLEE, Justice.
Appeal by plaintiffs from a judgment for defendants entered on a verdict of a jury in an action for damages for personal injuries.
Plaintiffs are husband and wife. Plaintiff-wife, referred to as plaintiff, was the injured party. The accident occurred at the intersection of Manchester, an eastwest street, and Airport, a north-south street, in Los Angeles. Pedestrian and vehicular traffic at the intersection was controlled by red and green lights. There was a north-south marked pedestrian crosswalk on the easterly side of the intersection, and an island in the center of Manchester.
Plaintiff stopped on the curb at the southeast corner of the intersection, awaiting a change of the lights from red to green. Defendant Brinkerhoff, referred to as defendant, driving south on Airport in a pickup truck stopped at the intersection on the red light. When the light changed to green, plaintiff proceeded to walk across Manchester in the crosswalk, and defendant started his truck, gave a signal for a left turn and proceeded to do so. When plaintiff was close to the island, she was struck by the truck.
The first assignment of error is that the evidence is insufficient to support the verdict. We assume, for the purpose of this opinion, that defendant was negligent. When plaintiff was standing on the curb, she observed the truck stopped at the intersection in the lane nearest the center line. She saw the truck start to move when the signal changed as she started across the street, and watched its progress into the intersection. She glanced over her shoulder to look behind her when she was about 10 feet from the curb. The truck was approaching the center of the intersection at that time. When it was in the center of the intersection, it was going about 5 miles an hour. She knew at that time it was going to make a left turn. When the truck was about 15 feet from the crosswalk plaintiff was about 10 feet from the island. She continued walking, and did not increase her speed or try to run at any time. There was nothing to prevent her doing so. When she was a step or two from the island, she was struck by the truck. The truck moved 7 or 8 feet from the point of impact until it stopped. It pushed her some, stopped, and she stepped right up on the island. She had watched the truck continuously from the time she was on the curb until it struck her.
We think it patent that the foregoing evidence supports the implied finding of the jury that plaintiff was contributorily negligent. The jury could well have concluded that plaintiff, in not increasing her speed and stepping onto the island when she knew the truck was coming into the crosswalk at a speed of 8 or 10 miles an hour, did not exercise ordinary care for her own safety. It may well have concluded that plaintiff made a mistake in judgment as to the speed and danger of the approaching truck. Whether a mistake in judgment by a pedestrian, when crossing a street, as to the speed and danger of an approaching vehicle, constitutes contributory negligence is a question for the jury. Kirk v. Los Angeles Ry. Corp., 26 Cal.2d 833, 839, 161 P.2d 673, 164 A.L.R. 1.
Plaintiff says the doctrine of comparative negligence, not of contributory negligence, is the law of this state. The contention is wholly without merit. The cases are legion to the contrary. Further, the cause was tried on the theory that the doctrine of contributory negligence applied, and no suggestion was made in the trial court that the doctrine of comparative negligence was applicable.
The next assignment of error is that the instructions given prejudicially over-emphasized the duty of the pedestrian and minimized the duty of the motorist. No purpose would be served in reviewing the several instructions given; it is sufficient to say that we have examined them and find no overemphasis of the duty of the pedestrian, or any minimizing of the duty of the driver. The charge appears to have been fair, and not to have placed undue emphasis on the duties of either party.
Affirmed.
SHINN, P. J., and WOOD, J., concur. --------------- * Subsequent opinion 258 P.2d 834. 1 The court gave California Jury Instructions (Civil Nos. 1, 2, 3, 4, 5, 7, 8, 9, 21, 22, 23, 27, 54-B, 101, 101-A, 101-B, 102, 103, 104, 113, 131, 136, 137, 140, 145, 150-C, 201, 201-B, 201-C, 201-E, and instructions on damages.