Reichle v. Hazie

MARKS, J.

This is an appeal from a judgment against Jack Storey, a corporation, to which we will refer as the defendant, in the sum of $8,500 general and $1,033 special, damages, for injuries suffered by plaintiff in an automobile accident on May 30, 1936, at the corner of Second Avenue and Market Street in San Diego.

Market- Street and Second Avenue are public streets of the city of San Diego. Market Street runs east and west and Second Avenue intersects it at right angles. Plaintiff, a pedestrian, was crossing from the north to the south side of Market Street in a pedestrian crosswalk on the west side of

[545]

Second Avenue. An automobile belonging to defendant and operated by Lee G-. Camp, its employee, was being driven north on Second Avenue. Camp made a left turn, into Market Street and ran plaintiff down, injuring him seriously and permanently.

Defendant urges the following grounds for a reversal of the judgment: (1) that plaintiff was guilty of contributory negligence as a matter of law; (2) errors in instructions given; (3) that the general damages are excessive; and (4) that no special damages are recoverable.

Plaintiff testified that before entering the intersection he looked for approaching vehicles in both directions on Market Street and back of him (north) on Second. Avenue. He also testified that he looked in all directions for approaching vehicles and did not see defendant’s automobile until it hit him.

It is too well settled in California to need extensive citation of supporting authorities that when a pedestrian, before entering a street, looks for approaching vehicles and fails to see one that injures him, the question of his contributory negligence is generally one of fact for the jury; that the finding of that body on this question ordinarily will not be disturbed on appeal. In

White

v.

Davis,

103 Cal. App. 531 [284 Pac. 1086, 1091], it is said:

“The question as to whether a given state of facts constitutes contributory negligence, as a matter of law, or whether it is a matter that should go to the jury, as a question of fact, is often a close one. The solution depends entirely upon the existing circumstances in each particular case. Unusual circumstances may determine in a given case whether or not reasonable minds might legitimately draw different conclusions on the question of negligence. There seems to be a general rule running through the cases where a pedestrian, or one standing on a highway, is injured by an automobile, which usually determines whether the question of contributory negligence is one of law, or of fact. Where the injured party fails to look at all, or looks straight ahead without glancing to either side, or is in a position where he cannot see, or in other words, where he takes no precaution at all for his own safety, it is usually a question for the court. Where he looks but does not see an approaching auto