People v. Leitgeb

SHINN, J.

Appellant, Ernest Leitgeb, was convicted in a jury trial of the unlawful killing of one Eugene Kasmer by means of a vehicle being driven with gross negligence. He appeals from the judgment and an order denying his motion for new trial. Defendant was prosecuted under section 192, subdivision 3(a) of the Penal Code. The sole issue of fact was whether he was grossly negligent in the operation of his car.

In appellant’s opening brief the case is summarized as follows: “According to defendant and his witnesses, defendant was driving west, on Sunset, on the street car tracks (the center traffic lane of the street), at about 25 miles per hour, when the decedent, crossing the street from south to north, suddenly appeared out of the darkness in front of the car. Defendant and his witnesses testified that defendant immediately applied his brakes, but was unable to avoid the accident. The prosecution’s witnesses testified that defendant, driving about 40 miles per hour, in the lane immediately north of the car tracks (lane 2 of the three west bound traffic lanes), suddenly veered to his left through the street ear safety zone, immediately in front of an on-coming street car, and hit decedent, who was standing at the extreme westerly end of that zone.”

The points on appeal are stated as follows: “ (1) That the testimony for the prosecution is so incredible as not to justify

[766]

its acceptance by the jury; and (2) That, even if the prosecution’s theory of events should be accepted, the evidence fails to show gross negligence.”

The fatal accident occurred at about 6:30 p. m. at the intersection of Portia Street and Sunset Boulevard, in Los Angeles. Portia Street, running north and south, intersects at right angles and deadends with Sunset Boulevard, an east-west arterial. Portia Street is 40 feet wide, and Sunset Boulevard is some 76 feet in width. Of the two crosswalks extending across Sunset Boulevard at this intersection, the one on the east side of Portia is unmarked and 9 feet in width, and the one on the west side of Portia is marked and 17 feet wide. The northwest and northeast corners of the intersection are lighted by ornamental light standards and these lights are supplemented by lights from a gas station located on the northeast corner, and by lights from the windows of a drugstore situated on the northwest corner. There are also lighting standards on the south side of Sunset Boulevard, at the intersection. Visibility is good in the whole intersection. Pacific Electric streetcar tracks are laid east and west along Sunset Boulevard. On the northeast corner is a safety zone for westbound traffic, extending east 57 feet from the east edge of the unmarked crosswalk. There is a similar safety zone for eastbound streetcar traffic on the south side of Sunset Boulevard. There was evidence that conditions of visibility at the safety zone on the northeast corner were very good.