Borum v. Graham

WILLIS, J.,

pro tem.

The appeal herein is from the judgment after verdict by a jury, from an order denying a motion for judgment notwithstanding the verdict and from an order denying a motion for new trial. The appeal from the latter order, being unauthorized, will be dismissed.

Appellant assigns as error orders overruling a demurrer, denying motions for nonsuit and directed verdict and the admission of certain evidence and refusing to strike the same, and contends that the evidence is insufficient to sustain the verdict.

Respondent was injured by contact with the side of a Studebaker automobile while she was crossing northward on Colorado Street from the southeast corner of its intersection with South Broadway in Pasadena, about 10 o’clock in the morning of December 10, 1928. The automobile was being operated by defendant Graham as agent and employee of

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appellant. Respondent at the time of injury was in a pedestrian crosswalk, marked on the surface of Colorado Street under authority of a city ordinance. As a result of her injuries she possessed no memory of the circumstances of the accident and could give no testimony thereon.

In her first complaint, filed within the year after the accident, she charged defendants with negligence in general terms in operating the automobile so as to collide with her while she was walking across Colorado Street “within the safety zone for pedestrians, duly provided and marked for pedestrians’’ by the city of Pasadena. By her amended complaints, filed more than one year after the accident, she added to the words “within the safety zone for pedestrians’’ the following: “sometimes called and described as ‘pedestrian cross walk’, ‘pedestrian zone’ and ‘pedestrian crossing’ ’’. This change in the language of the complaint did not operate to state a new or different cause of action. The complaint would state a cause of action without the quoted words, hence the demurrer was properly overruled and there was no error in the decision that the action was not barred by the statute of limitations pleaded.

We deem it unnecessary to state the testimony. It will suffice to say that upon examination of the transcript thereof it appears that the case was tried and submitted to the jury on evidence and instructions which embraced two distinct theories of liability based on different bases of law; the one founded on negligence in operating the automobile across a pedestrian crosswalk established by municipal ordinance while there was therein on the same half of the street a pedestrian seeking to cross the highway, such negligence being predicated on violation of a city ordinance making it unlawful so to do; the other theory being founded on negligence in operating the automobile so as to pass another vehicle going in the same direction within the street intersection, in violation of the provisions of section 125, subdivision (e) of the California Vehicle Act as it then existed. The evidence relating to the first theory is undisputed, and if it be determined that the ordinance sections on which it was founded are valid enactments, it must follow that the verdict is fully supported. The evidence relating to and affecting the second theory was in sharp conflict. There was substantial evidence which, if believed, would