Sharick v. Galloway

BARNARD, P. J.

This is an action for damages for injuries sustained by the plaintiff when he was struck by an automobile driven by one of the defendants. So far as material here, the sixth amended complaint alleges that a county road 40 feet in width, with the center portion paved to a width of 16 feet, runs through the town of Farmersville, in a north and south direction; that a described portion of this road is inside the residence district of said town, within the meaning of subdivision (b) of section 28% of the California Vehicle Act; that on November 10, 1933, after dark, the plaintiff was walking along this road in a southerly direction inside of said residence district; that he was walking parallel with, but about six feet to the west of the paved and traveled portion of said highway; and that while he was so walking the defendant Boon so negligently operated an automobile, which he was driving in a southerly direction on the paved portion of this road, “as to cause said automobile to run off of the paved, and usually traveled portion of said highway and to run into and collide with plaintiff and plaintiff was hurled through the air seventy-five feet by the impact of said automobile with his body”. The court sustained demurrers to this complaint without leave to amend, and this appeal followed the judgment.

It is conceded that the demurrers were sustained on the theory that it appears from the face of the complaint that the appellant was guilty of contributory negligence as a matter of law, in that he was walking along his right-hand side of a highway outside of a business or residence district in violation of section 150% of the California Vehicle Act. We will refer to this act as it read at the time of the accident.

The respondents contend that it appears from the complaint that the accident in question was outside of a business or residence district since it is not alleged that the area in question was signposted in accordance with section 116 of the act, and since section 28% (c) of the act provides that a public highway shall be conclusively presumed to be outside of a business or residence district unless it is signposted as re

[695]

quired by the act. While it is conceded that the portion of the road involved was not signposted, it is contended by the appellant that it is and was within a residence district and it is so alleged in the complaint. The appellant argues that the presumption raised by section 28% of the act does not apply since under section 116 the local authorities are required to signpost main through highways only, that they may or may not signpost other highways at their discretion, and that it does not appear from the complaint that this was a main through highway. The question thus raised need not be decided and we will assume, for the purposes of this opinion, that this accident occurred outside of a business or residence district.