Foti v. Morrissey

SHINN, J.

In this action, brought by the widow and children of Mitchell Foti to recover damages for his alleged wrongful death, defendants prevailed in a jury trial and plaintiffs appeal. Upon the appeal it is contended that the evidence established as a matter of law the negligence of defendant James P. Morrissey, who was driving the automobile of William J. Morrissey with the latter’s consent when it struck and fatally injured deceased; also that there was no evidence whatever that deceased was guilty of contributory negligence. Certain claims of error are predicated upon the giving of instructions.

At about 11 p. m. on the 28th of December, 1940, Mitchell Foti, who was on his way home from work, alighted from a west-bound street car at the northeast corner of Vernon and Main Streets in the city of Los Angeles; the street car resumed its course and crossed Main Street going west; deceased also proceeded westerly across Main Street and was struck by the automobile a foot or two before he reached the middle of Main Street, receiving fatal injuries. It was raining at the time; defendant was driving north near the center of Main Street with his headlights burning and with two windshield wipers in motion on his car. Some 50 feet southerly from Vernon Avenue he slowed down from a speed of 30 miles to about 20 miles per hour, and. seeing that the signal had changed from “stop” to “go” for northbound traffic, defendant drove across Vernon Avenue after the street car had crossed over. The left front fender of his car struck deceased at a point some 13 feet north of the north crosswalk of the intersection and close to the center line of Main Street; deceased was thrown slightly forward and to the left so that he fell in front of a car standing at the intersection headed south. Defendant did not see deceased until just as the car struck him, and testified that deceased was running at that time. The light thrown by the headlights of defendant’s car was sufficient to enable him to see for a distance of 90 feet ahead. His car was stopped within a few feet after the impact. These were the principal facts as given in evidence and could have been accepted by the jury notwith

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standing some minor contradictions and inconsistencies in the testimony.

While it is not contended that defendant was driving at an unsafe speed, it is claimed that his negligence was established by uncontradicted evidence, in that he failed to see deceased before the accident and in that he was not driving as close to the right-hand curb as practicable, within the requirements of section 525 of the Vehicle Code.