Kostouros v. O'Connell

PETERS, P. J.

Defendants appeal from an order granting plaintiff’s motion for a new trial, after verdict and judgment for defendants. The motion was granted on the ground of insufficiency of the evidence.

It is now settled by a long line of cases that where the testimony in the court below is in substantial conflict, the action of the trial court in granting a new trial upon the ground of insufficiency of the evidence will not be disturbed. The appellate court may not reverse such an order unless a verdict in favor of the moving party would not find legal

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support in the evidence. (See cases collected 2 Cal. Jur., p. 940, sec. 554.) Tested by these standards there can be no doubt of the propriety of the trial court’s action in the instant case.

While crossing on foot from the west to the east side of Laguna Honda Boulevard at the Forest Hill Station in San Francisco, plaintiff was struck by an automobile driven by Bernice O’Connell and owned by defendant May O’Connell. It is defendants’ contention that the evidence demonstrates that plaintiff was guilty of contributory negligence as a matter of law.

The injury occurred on January 17, 1938, between 8 and 9 o’clock P. M. The weather was clear, visibility good, and the street well-lighted. There are two clearly marked pedestrian crosswalks across Laguna Honda Boulevard at the Forest Hill Station, twenty feet apart on the west side of the street, and forty feet apart on the east side. At the southerly crosswalk is a “Stop-Go” traffic signal which is operated by pedestrians pressing a button on a control box. Except when thus operated the signal shows “Go” for automobile traffic running north or south on Laguna Honda Boulevard, but, when the button is pressed by pedestrians, appropriately placed signals read “Stop” for such traffic.

Plaintiff, a trained nurse, was on her way to work. She alighted from a streetcar in the tunnel at the Forest Hill Station, and took an elevator to the surface. She came out of the door of such station near the northerly crosswalk. She testified that it had been her intention to go to the south crosswalk to place the signal in operation, but observed a man approaching the signal, and therefore crossed the street in the northerly crosswalk. She testified that, before starting across the street, .she waited until she heard the bell ring and saw the red light go on to halt automobile traffic; that she looked for oncoming vehicles and saw one, not connected with the accident, coming from the north; that she could see none approaching from the south; that she started to walk across the street within the limits of the north crosswalk; that she had proceeded about three-quarters of the way across when she observed the car driven by Bernice O’Connell approaching from the south, about fifty feet away. This would place the 0 ’Connell car just about opposite the red light bordering on the southerly crosswalk. She further testified that at