Jones v. Gilland

BARNARD, P. J.

On August 1, 1952, while crossing a street in San Bernardino, the deceased was struck by an automobile owned by the defendants and driven by the defendant wife. He filed an action for damages on July 16,

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1953, and died on October 22,1953. His widow was appointed administratrix of his estate and substituted as plaintiff. She filed an amended complaint and also filed a wrongful death action, asserting that the injuries sustained in the accident were a proximate cause of Jones’ death. The two actions were consolidated for trial and on this appeal. A jury returned a verdict in favor of the defendants as to each cause of action, and the plaintiff has appealed from the judgment.

The accident happened near the intersection of Mt. Vernon Avenue with Thirteenth Street. Mt. Vernon Avenue runs north and south and has four marked traffic lanes with a double white center line. Thirteenth Street, running east and west, comes into Mt. Vernon Avenue at two points 60 feet apart. One part of Thirteenth Street runs east from Mt. Vernon Avenue, and 60 feet south of there the other part runs west. There was no marked crosswalk at either place. The accident happened about 9 p. m. when the deceased was attempting to cross Mt. Vernon Avenue at a point about midway between where. Thirteenth Street comes in from the east and where it goes on to the west. The deceased was struck while he was in the westerly of the northbound traffic lanes, and about 5 feet east of the double white line.

A traffic officer testified that the point of impact was 30 feet south of the south curb of Thirteenth Street as it came in from the east; that the defendants’ car came to rest with its front end 24 feet south of that curb line; that the car was 4 feet east of the center line of Mt. Vernon Avenue; that the ear had gone 6 feet beyond the point of impact; that the car left “tire marks” running 51 feet back of its front wheels; that these tire marks ran in a straight line; that the deceased lay 9 feet ahead of the car and across the center line; that this was a 25-mile zone; and that the traffic on Mt. Vernon was very heavy.

A witness, who lived on the west side of Mt. Vernon and just south of where Thirteenth Street leads to the west, testified that from her front porch she saw Jones walk south on the east sidewalk of Mt. Vernon Avenue, across the northerly portion of Thirteenth Street, and to a point about 30 feet south of that portion of Thirteenth Street; that he then walked westerly across the easterly half of Mt. Vernon Avenue to a point near the white center line of that street; that he stopped there and waited for the steadily flowing southbound traffic to clear; that she saw him standing at that position