Horton v. Stoll

TYLER, P. J.

Action for damages for personal injuries. The injuries sustained by plaintiff Maxine Libby Horton, a pedestrian, were alleged to have been caused by the negligence of defendant automobile driver. The case went to trial before the court sitting with a jury. At the close of plaintiff’s case, defendant moved for a nonsuit on the grounds: (1) that plaintiff had failed to show defendant was negligent, and (2) that plaintiff was guilty of contributory negligence as a matter of law. The court found in accord with defendant’s contention, withdrew the cáse from the jury, and granted a judgment of nonsuit. Motion for a new trial was made and denied. This is an appeal from the judgment and order. Before the transcript could be prepared the court reporter who reported the trial died without having transcribed his notes in full. The only testimony transcribed was the testimony of three witnesses. In lieu of the full transcript of the testimony the parties entered into a stipulation as to what constitutes the record. The facts are therefore undisputed.

It appears from the record that on the day of the accident plaintiff, who was twenty years of age and a student of Continuation High School in Berkeley, stood with three other young ladies in front of that institution. The school is located on the east side of Grove Street, between Allston Way and Kittredge Street. Grove Street runs north and south. Allston Way runs east and west and is north of the school building. On the afternoon of the day of the accident, at about 5 o’clock P. M., the young ladies came out of the high school and walked across Grove Street to a store on the west side of the street. After purchasing some candy they returned to the east side of this street in front of the school building. They then decided that some of them should return to the store and purchase more candy. Accordingly, plaintiff and a Miss Moen proceeded to cross

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Grove Street again from east to west in the direction of the candy store. There was no crosswalk or pedestrian way at the point where plaintiff and her friend were walking across the street. The other two young ladies, a Miss Dale and Miss Rutland, remained on the sidewalk. Only two eyewitnesses to the accident, beside plaintiff, testified at the trial. They were Miss Moen and Miss Dale. Miss Moen testified that as she and plaintiff started across the street, several automobiles were approaching them from the south and that they stopped behind a parked car and awaited an opportunity to go out into the street. They then proceeded to the middle of the street at a moderate pace and passed the center thereof, and when at the first rail of the farther car track located on the street they hesitated. Miss Moen was on plaintiff’s right and slightly behind her about an arm’s length away. Plaintiff looked or glanced to the north but failed to remember what, if anything, she saw; she was of the impression, however, that she had plenty of time to cross the street. After taking a step or so, and while still on the car track, she was struck by the left front corner of defendant’s car and was carried on the bumper for a distance of approximately fifty feet, when she fell off and was run, over by the car. She further testified that when she became conscious she was about ninety feet from the place of the impact. Miss Moen testified that she “sort of glanced”, and while she testified she saw nothing her further testimony would indicate otherwise, for she testified that she was hesitating for the machine which struck plaintiff to pass in front of her. Miss Dale was not an actual witness to the impact as her back was turned to plaintiff. Her testimony as to where the car stopped was substantially the same as that of Miss Moen. Although Miss Moen saw the car before it struck plaintiff, she did not testify as to the speed at which it was traveling, and in fact there was no direct evidence upon the subject, nor was there any evidence as to when the brakes were applied, which might indicate the speed.