Opinion
Hearing Granted by Supreme Court Nov. 2, 1933.
Appeal from Superior Court, Los Angeles County; John L. Fleming, Judge.
Action by Agnes Salomon against Albert F. Meyer. From a judgment for defendant and an order denying plaintiff’s motion for a new trial, plaintiff appeals.
Appeal from order denying new trial dismissed, and judgment affirmed.
COUNSEL
Fred W. Morrison, of Los Angeles, for appellant.
Paul Barksdale D’Orr and Thomas A. Reynolds, both of Los Angeles, for respondent.
OPINION
ARCHBALD, Justice pro tem.
Plaintiff sued defendant for injuries due to the latter’s alleged negligence in operating his automobile. Defendant denied that he was negligent and pleaded contributory negligence on the part of plaintiff. The jury returned a verdict in favor of defendant, upon which judgment was entered, and plaintiff has appealed.
The sole error urged by appellant relates to an alleged prejudicial instruction given by the court.
The accident happened on December 4, 1928, between 5:30 and 6 o’clock p. m., at the intersection of Jefferson street and Gramercy place, in Los Angeles. Jefferson street runs east and west, and defendant was proceeding west on said thoroughfare. Plaintiff was crossing Jefferson street from north to south in the pedestrian zone marked by white lines, as required by city ordinance. It was stipulated that a traffic ordinance of the city was in effect at the time making it unlawful for the operator of any vehicle to drive into any crosswalk outside of the central traffic district while a pedestrian was engaged in crossing the half of the roadway therein over which such vehicle is traveling. The location in question was outside the central traffic district.
Among other instructions, not shown by the record, the court gave the following, of which appellant complains: "I instruct you that it is a duty resting upon any person attempting to cross a street that is likely to be dangerous, before placing himself or herself in a position of danger, to look in the direction from which such danger is to be anticipated. This is a continuing duty, and is not met by looking once and then looking away. In the exercise of ordinary care it is the duty of the pedestrian to look to the right and to the left whenever he or she has voluntarily put himself or herself into a position which may be one of peril coming from either direction. If you believe from the evidence in this case that the plaintiff, in attempting to cross the street, did so without exercising that degree of care which would have been exercised by a person of ordinary prudence, under the instructions that I have just given you, and if you find that such failure upon her part proximately contributed to her injury, then the plaintiff cannot recover, and your verdict must be in favor of the defendant; and this is true even though you may believe that the driver of the automobile was also negligent."
The evidence showed that defendant’s headlights were on, that daylight had ended, and that it was fairly dark. Plaintiff testified that she "first looked all around from east to west, and saw--from a distance far away--the car coming, but that was far away. So I crossed the street--started to walk--walk fast, * * * and I was struck and I fell down. * * * I did not see the automobile that struck me, it came so suddenly from the back." That after stepping off the curb into the street plaintiff "walked straight ahead" and did not look again in the direction of the car which she had seen coming, and only looked "to see where the white line was"--"I walked on there"--is undisputed. Plaintiff fell in the pedestrian crossing. It is apparent from the evidence that she walked into the side of defendant’s automobile as defendant swerved his car away from her in an attempt to avoid her. The testimony of defendant and his wife, who was with him, shows that plaintiff stepped into the right rear fender of his car. A witness for plaintiff who was driving a car east on the south side of Jefferson street, defendant’s car at the time being between his vehicle and plaintiff, testified that "Mrs. Salomon came in contact with the other side of the [defendant’s] car, the right front fender, I should say." Joe Berard, a witness for plaintiff, was sitting at the front window of his home, in front of which the pedestrian zone was located, and testified that he saw the right front fender of defendant’s car strike plaintiff. This witness said she "fell right close to the center of the white zone; her body was half past the cross zone * * * half past the 12-inch zone. Q. Do you mean one of the pedestrian zone lines? A. Yes sir." Other questions indicated he meant the west line marking the zone.
Regardless of which fender plaintiff contacted, the only conclusion that could be drawn from the evidence is that she ran into it. If she had been hit by the front of the fender, her body would not have remained in the pedestrian zone, much less on the west side of it.
In our opinion the instruction complained of is subject to criticism, but we fail to see that, under the evidence presented, it amounts to a direction to the jury to return a verdict for defendant or an instruction that plaintiff was guilty of contributory negligence as a matter of law, as contended by appellant. To tell the jury "that it is a duty resting upon any person attempting to cross a street that is likely to be dangerous, before placing himself or herself in a position of danger, to look in the direction from which such danger is to be anticipated" neither instructs the jurors that the place where the plaintiff attempted to cross was dangerous, nor that she placed herself in a position of danger, but leaves them to determine those facts for themselves. That it is the duty of such a person about to cross a street that is likely to be dangerous, or who is about to place himself or herself in a position of danger, to look before so doing, would seem to be a correct statement of the law as well as a commonplace, well known to every person of ordinary intelligence and concerning which the jurors would not need instruction. To say that such duty continues as one proceeds into a street that is likely to be dangerous, and before placing oneself in a position of danger, would seem to be equally so. It still leaves open to the jury the question of fact as to whether or not plaintiff was in a street that was likely to be dangerous, or placed herself in a dangerous position. If she was in a street likely to be dangerous, or did place herself in a position of danger, certainly the duty to look devolved upon her. She could not shut her eyes and walk hurriedly into danger and then say she was not negligent or was acting as would a person of ordinary prudence. It is equally true that "in the exercise of ordinary care it is the duty of the pedestrian to look to the right and to the left whenever he or she has voluntarily put himself or herself into a position which may be one of peril." Nor, in our opinion, does the statement of such commonplaces tell the jury that plaintiff had no right to assume that in the pedestrian zone, protected by the ordinance, she was in a place of safety, or that defendant would obey the ordinance and stop to let her pass. That is all involved in the question left to the jury to determine, i. e., whether the street was "likely to be dangerous" and whether or not plaintiff placed herself in a position of danger at any time in her progress across the roadway. And with such commonplaces in mind, if the jury believed that the plaintiff "in attempting to cross the street did so without exercising that degree of care, which would have been exercised by a person of ordinary prudence," and "that such failure upon her part proximately contributed to her injury," she certainly could not recover, regardless of how negligent defendant might have been; and that, in our opinion, is in effect what the second instruction complained of tells the jury.
While we cannot commend the instruction complained of to the profession, we fail to see any error in giving it under the evidence in this case. Even if erroneous, after an examination of the entire cause, including the evidence, we do not see how the jury could have reached a different conclusion.
Appellant has also appealed from the order denying her motion for a new trial, from which, since 1915, no appeal lies.
Appeal from order denying new trial dismissed. Judgment affirmed.
We concur: CRAIG, Acting P. J.; STEPHENS, J.