Opinion
2-19-1954
SHOEMAKE v. WILSEY et al. * Civ. 8310.
Burke & Rawles, John E. Nelson, Ukiah, for appellant. Mannon & Brazier, Ukiah, for respondent.
SHOEMAKE
v.
WILSEY et al. *
Feb. 19, 1954.
Hearing Granted April 14, 1954.
Burke & Rawles, John E. Nelson, Ukiah, for appellant.
Mannon & Brazier, Ukiah, for respondent.
PEEK, Justice.
Plaintiff appeals from a judgment in favor of defendant in an action instituted by him for damages resulting from personal injuries sustained when he was struck by an automobile operated by defendant, Phyllis Wilsey. In view of the evidence which is without serious conflict, it appears the case comes squarely within the rule enunciated in Gray v. Brinkerhoff, 41 Cal.2d 180, 258 P.2d 834, and hence must be reversed.
The record shows that while plaintiff was crossing State Street from west to east at the intersection with Perkins Street in the City of Ukiah, he was struck by defendant's car which was being driven from east to west on said Perkins Street, and at the time of impact was being turned left into State Street. The defendant driver testified she did not see plaintiff until she was so close she could not stop before hitting him. The intersection was free of traffic at the time. Plaintiff's testimony was that defendant's car was stopped at the intersection when he stepped into the street. Defendant driver testified that no one was in the intersection when she started to turn. Plaintiff further testified that just before the impact he started to run to avoid the collision. A witness who was seated in a cafe at the corner testified on direct examination that when he first saw plaintiff he was running, that at no time did he see plaintiff walking. On cross examination he testified that he did not know if the curb line or sidewalk could be seen from where he was sitting in the cafe, that he did not know whether he saw plaintiff leave the sidewalk or not, but that when he first saw him he was running.
The portion of Vehicle Code section 560 pertinent to the sole question herein reads as follows: 'The driver of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.'
In view of the uncontradicted facts as shown by the record and the mandatory provisions of the above section, there can be no question but that the defendant driver was negligent as a matter of law. Gray v. Brinkerhoff, 41 Cal.2d 180, 258 P.2d 834; Ducat v. Goldner, 77 Cal.App.2d 332, 175 P.2d 914; and People v. Lett, 77 Cal.App.2d 917, 177 P.2d 47. It necessarily follows that the determination of this appeal is dependent upon the sole question as to whether or not the plaintiff was contributorily negligent, thereby taking himself without the rule.
In the Gray case , wherein the facts were quite similar, the Supreme Court held that it was the duty of a driver of a vehicle '* * * in starting up and driving his vehicle into and through the crosswalk to ascertain whether plainly visible pedestrians were using such crosswalk and it was his obligation to yield the right of way to them.' The facts in that case showed traffic at the intersection. Here there was no traffic. There the driver did not see plaintiff until after his truck had hit her. Here defendant did not see plaintiff until immediately prior to the impact. There the defendant saw no one in the crosswalk but suggested his attention was diverted by an oncoming car. Here there was no traffic to divert defendant's attention. In summary the court, in the Gray case, held that such evidence '* * * establishes that defendant was negligent as a matter of law'; and that it was '* * * equally apparent that plaintiff was free from negligence proximately contributing to her injuries.' 41 Cal.2d at page 185, 258 P.2d at page 837. We are unable to distinguish the facts in the Gray case from those disclosed by the record herein. Hence we likewise conclude that plaintiff was not contributorily negligent and that defendant was guilty of negligence as a matter of law.
The judgment is reversed.
VAN DYKE, P. J., and SCHOTTKY, J., concur. --------------- * Subsequent opinion 277 P.2d 17.