Hurtel v. Albert Cohn, Inc.

THOMPSON, J.

This appeal is taken by the plaintiffs from a judgment rendered on a verdict in favor of the defendants in an action to recover for personal injuries sustained by Mrs. Hurtel when struck by a truck owned by the defendant corporation and operated by the defendant Bishop, one of its employees. The accident occurred at the intersection of Second and Fremont Streets, which is within the congested area of the city of Los Angeles, and at a point within the area designated as a “pedestrian lane". The corner was controlled by mechanical traffic bells and signs, one of each being at each corner of the intersection. On the ringing of the first bell the “go" signs were changed to “stop" and,

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upon the ringing of the second bell, the “stop” signs which were up in the other direction changed to “go”. It appears that, upon the ringing of the first bell, Mrs. Hurtel left the sidewalk from the northerly curb of Second Street and proceeded southerly across Second Street. The defendant’s truck, traveling westerly on Second Street, struck the plaintiff, inflicting the injuries complained of.

The appellants complain that the court committed prejudicial error in instructing the jury that a violation of a city traffic ordinance by the plaintiff constituted contributory negligence. They also complain because plaintiffs were denied the right to prove the custom of pedestrians in Los Angeles to commence to cross the street upon the ringing of the first bell and that the court misinstructed the jury with respect to the reciprocal duties of pedestrians and drivers on city streets and that the court erred in admitting in evidence the deposition of Mrs. Hurtel, taken by defendants prior to trial.

Considering these claims of error in their order, it is a well-settled rule in this state that the violation of a statute or ordinance constitutes negligence

per se

(19 Cal. Jur. 632, and cases there cited), and that it constitutes contributory negligence if the failure to comply with the ordinance contributes directly to the injury. The instructions upon the subject of contributory negligence in the instant case included the element that the negligence of the plaintiff must have contributed to the injury. Appellants also complain because the instructions with respect to the contributory negligence of Mrs. Hurtel omitted the doctrine of the last clear chance. However, in at least two of the instructions given at the request of the plaintiffs, the jury was fully and properly instructed on the doctrine of the last clear chance and told that, regardless of the negligence of the plaintiff, if the defendant driver had the last clear chance to avoid injuring her by the use of ordinary care then she was entitled to recover. It appears, therefore, that a fair reading of the instructions discloses that the jury was properly advised of the law with respect to this doctrine. And, in this connection, we may dispose of the contention of appellants that defendants’ instructions did not include a reference to the last clear chance doctrine. The jury having been prop