Driver v. Norman

MOORE, P. J.

Defendant appeals from the trial court’s order granting plaintiff a new trial after a verdict in favor of the defendant. Such new trial was granted solely on the ground that the court erred in giving an instruction on unavoidable accident.

Respondent commenced this action to recover damages for injuries received when she was struck by appellant’s automobile at the intersection of Seventh and New Hampshire streets in the city of Los Angeles on April 16, 1949, at about 7:30 p. m. Seventh Street is an east-west thoroughfare and is approximately 55 feet wide at the point of impact. New Hampshire runs north and south and is about 40 feet in width. Respondent was walking north across Seventh Street within the easterly unmarked crosswalk and appellant was driving east on Seventh Street at the time his vehicle encountered respondent. This intersection was in a residential area and was well lighted by street lights at each corner.

Appellant’s testimony reveals briefly the following: He was driving east, on Seventh at a speed of 20 to 30 miles per hour and following behind a Cadillac at a distance of about 15 feet. The latter ear was proceeding in the second lane from the curb adjacent to parked vehicles along Seventh Street. Appellant’s car was partly in the same lane and partly in the lane next to the center of Seventh Street. When appellant reached the center of New Hampshire the Cadillac suddenly slowed down and swerved 5 feet to the right. It was then that appellant saw plaintiff for the first time. He immediately applied the brakes, swerved to the right but struck the unfortunate woman with the left front headlight. Appellant testified that she stepped from in front of the Cadillac

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into the path of his car, and that although the Cadillac did not strike respondent, her coat brushed along its side.

The 62-year-old pedestrian testified that before she stepped off the curb, she observed two cars coming toward her from the west but both were well back of the intersection; one was to the rear of the other and a little to its left; she immediately proceeded across the street at a normal pace; she observed the rear car after she had arrived at approximately the center of Seventh Street, was startled by its proximity, turned to face it and was struck. She did not otherwise hesitate or stop after leaving the curb. She never formed an estimate as to the speed of the vehicle and never looked toward it again until the moment of impact.