Thompson v. Baldwin

NOURSE, P. J.

On a trial with a jury plaintiff, had a verdict for $6,000 in an action for damages for personal injuries. A motion for a new trial was made and denied, and the defendant has appealed from the judgment criticizing certain instructions and attacking the award as excessive.

There is no material conflict in the evidence, and though the defendant pleaded contributory negligence on the part of the plaintiff, no evidence was offered to support that issue. The plaintiff was walking northerly across California Street at its intersection with Polk Street, proceeding within the pedestrian lane clearly marked for that purpose. The defendant was driving an automobile westerly on California Street and stopped a few feet easterly of this crosswalk in obedience to an arterial stop sign placed at that corner of the intersection. While the automobile was standing in this position, the plaintiff, when approximately at the middle point of the intersection, looked to her right and, observing that the machine had stopped, passed on in front of it. While so doing the defendant started his car forward, causing the right front fender thereof to strike the plaintiff. The impact knocked the plaintiff to the pavement, and the right front wheel ran over one of her legs. Both of the bones of the leg were broken, and the fractures extended into the ankle joint. Plaintiff was given hospital treatment and confined to her bed from December 18, T936, to February 4, 1937. Thereafter, she was able to get around to some extent with the use of crutches, but at the time of the trial, five months after the accident, .she was still suffering pain and restriction of the motion at the ankle joint which appeared to be a permanent disability.

[706]

The appellant criticizes the giving of an instruction in the terms of the traffic ordinance of the city and county of San Francisco which provided that it should be unlawful “for the operator of any vehicle to drive into any crosswalk . . . while there is in súch crosswalk upon the half of the roadway upon which such vehicle is traveling any pedestrian engaged in crossing the roadway until such pedestrian shall have passed beyond' the path of said vehicle”. It is contended that this portion of the ordinance is invalid as in conflict with the provisions of the state Vehicle Code relating to the same subject-matter. Section 560 of this code is the one referred to. It provides: “(a) The driver of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk. ...” Because of the peculiar circumstances of this case, we expressly refrain from passing on the question of the asserted invalidity of the ordinance provisions. Here the conceded facts are that when the plaintiff was at about the middle of the crossing she looked to her right and saw that the vehicle was stopped. When she had reached a point directly in front of the vehicle it was still stopped. Within all rules of reason she then had the right of way to proceed to the curb unmolested within the plain terms of the Vehicle Code. Under such circumstances the provisions of the ordinance referred to state nothing more than a commonplace injunction that the operator of a vehicle should not deliberately start forward and strike down one in the crosswalk who thus has the right of way to proceed.