Mendelson v. Peton

DRAPEAU, J.

Plaintiff was struck by an automobile driven by defendant. The accident happened at the intersection of Sunset Boulevard and St. Andrews Place in Los Angeles. It was about 8 o’clock in the evening, and all the cars had their lights on. Traffic was heavy. The three lanes in the westbound roadway in which defendant was driving were filled with motor vehicles. She was in the center lane, a part of a fast-moving vehicular mass.

An eyewitness of the accident, a “Good Humor man” whose truck was parked on Sunset Boulevard, described the conditions at the time: “. . . traffic on Sunset Boulevard is always busy at that time of night. . . . Traffic comes in flowing. There may be an intermission of a couple of seconds while they stop the red light one way or another, and then they come again.”

Suddenly plaintiff loomed up in a marked crosswalk in front of defendant’s car. She applied her brakes, and came almost to a stop before her car hit him; but it was not enough, for “he went flying through the air.” He had doctor and hospital bills; his injuries were painful but not permanent.

Plaintiff’s action for damages caused by defendant’s alleged negligence was tried by a jury, with a verdict for defendant.

The trial court denied plaintiff’s motion for a new trial, and he appeals from the judgment.

Plaintiff urges as grounds of appeal that defendant was guilty of negligence" as a matter of law; that the verdict finds no support in the evidence; that there was error in instructions given and refused by the trial court; that there was misconduct of counsel; and that the trial court should have reopened the case to read an oral stipulation that police officers whose names appear on the accident report were not available to testify.

Plaintiff urges in his brief: that defendant was negligent in failing to observe plaintiff until she was 50 feet away from him, in failing to avoid hitting plaintiff by swerving, in failing to observe that there was a marked crosswalk, or any crosswalk, in failing to observe whether pedestrians were using the crosswalk, a failure generally to keep her ear under proper control, a failure generally to observe a proper look

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