Kapper v. Harris

Mo COMB, J.,

pro tem.

This is an appeal from a judgment in favor of respondent after a trial before a jury.

Viewing the evidence most favorable to respondent

(Demers

v.

Sutherland,

117 Cal. App. 489, 493 [4 Pac. (2d) 187]), the facts in the instant case are:

Appellant stepped into a private driveway ten feet wide bounded on one side by an apartment house and on the other by a stone wall. She saw a 1929 Ford delivery truck owned by respondent at the south end of the driveway". Aware that the driveway was used by both pedestrians and vehicles, she started to walk in a northerly direction on it. The driver of the truck, after appellant entered the passageway and before backing in a northerly direction, started his motor, sounded his horn, and looked to the rear along the driver’s side of the conveyance, but did not see appellant, as she was out of the range of his vision. Shortly thereafter the rear end of the truck struck appellant and she was injured.

[632]

Appellant relies for reversal of the judgment on two propositions :

First: There was not any substantial evidence to sustain the implied findings of the jury that:

(a)

Respondent was not negligent in the operation of its truck.

(b)

Appellant was guilty of contributory negligence.

Second: The trial court committed prejudicial error in instructing the jury as follows:

(a)

“While it is the duty of the driver of a vehicle to look out for foot travelers, it is equally the duty of the foot travelers to use care before entering upon a driveway where vehicles frequently pass and repass, and see that they are not in immediate danger from the near approach of any of them.