Gallardo v. Luke

WARD, J.

This is an appeal by defendants from an order granting plaintiffs’ motion for a new trial upon the ground

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of the insufficiency of the evidence to sustain the verdict in an action under the provisions of section 377 of the Code of Civil Procedure.

There is substantial agreement relative to the topographical conditions existing at the situs of the accident. San Pablo Avenue, running north and south in the city of Oakland, is approximately seventy feet in width, the center thereof divided by a double white line. The easterly half is again divided into two lanes, of which that nearest the curb permits space for parking or traffic. Francisco Street, about thirty-five feet in width intersects San Pablo Avenue. At or near the northerly curb line of Francisco Street is the southerly painted line of a six-foot pedestrian lane marked across San Pablo Avenue from the easterly to the westerly curbs thereof. Decedent, by means of a shaft attached thereto, was pushing or shoving a two-wheel cart about seven feet long and five feet in height from the westerly to the easterly side of San Pablo Avenue in the pedestrian lane. He proceeded to the double line in the center of San Pablo Avenue, halted, and then started to move forward. During this period, a truck, the property of defendant Lawrence Luke, was being operated by defendant Sterling Graham in the course of his employment, northerly on San Pablo Avenue near its intersection with Francisco Street. Just prior to the impact, the truck turned to its right, then swung to the left. The decedent had started running with the cart and as he did so he proceeded outside and to the north of the pedestrian lane. When about five feet from the easterly curb of San Pablo Avenue, outside and beyond the pedestrian lane, the truck struck him, inflicting injuries from which he died.

Respondents place great stress upon the negligence of the driver of the truck, a subject in which we are interested only incidentally, as the appellants for the sole purpose of appeal contend that there is but one issue presented, namely, the contributory negligence of the decedent. In appellants’ reply brief a suggestion is made that there is a serious question as to whether or not decedent was a pedestrian. If he was not a pedestrian, he should be placed in the category of an operator of a vehicle. The two-wheel cart might be termed a conveyance but it was propelled by human power and therefore is not within the purview of the term “vehicle” as used in section 31 of chapter 1 of the