McMahon v. Marshall

WHITE, P. J.

This is an appeal by defendants from a judgment in favor of the minor plaintiff, Julia Ann McMahon, awarding her damages for injuries sustained when she was struck by an automobile operated by the defendant Betty J. Marshall.

The plaintiff was struck as she was crossing Santa Fe Avenue on the south side of 21st Street, in the city of Long Beach, in a marked pedestrian crosswalk. Two vehicles proceeding south on Santa Fe Avenue were stopped by their operators to permit the plaintiff to cross. Defendant Betty Marshall drove her automobile past these two vehicles and into the crosswalk, striking the child in the crosswalk and near the center line of the street.

It is contended that the trial court committed prejudicial error in failing to give a requested instruction on “unavoidable accident,” and in reading to the jury subsection (b) of section 560 of the Vehicle Code, which provides that “Whenever any vehicle has stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to

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permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass snch stopped vehicle.” A careful perusal of the record discloses no prejudicial error.

With respect to the failure to instruct on the subject of unavoidable accident, appellant relies upon the cases of

Parker

v.

Womack,

37 Cal.2d life [230 P.2d 823], and

Driver

v.

Norman,

106 Cal.App.2d 725 [236 P.2d 6]. Coneededly, under these cases, it is proper to give the instruction in question where there is evidence that the accident was proximately caused by circumstances beyond the control of a reasonably prudent person; and the application of the rule allowing this defense is not limited to cases where the defendant relies upon evidence of a proximate cause beyond his control, but the instruction is also approved where there was no evidence that the accident was caused by any factor other than the lack of care