Brisbin v. Wise Co.

WILLIS, J.,

pro tem.

This is an appeal by plaintiff from a judgment entered upon an adverse verdict by a jury in an action for damages for personal injuries. In her complaint plaintiff charged negligence on the part of defendant Wise Company, proprietor of a department store 'in Long Beach, through its servant and clerk, defendant Ida Bryant, in that said Ida Bryant negligently collided with plaintiff in an aisle in such store while the latter, was using the aisle as a patron and invitee of defendant company. Defendants answered separately, each denying the charge of negli

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gence and each pleading contributory negligence on the part of plaintiff, and that, the accident was unavoidable.

Appellant complains of six instructions given at defendants’ request, and of the action of the court in refusing four instructions requested by plaintiff. The first four of those given and complained of related to the duty of one in plaintiff’s situation to use her sense of sight, to see what is plainly visible, to keep a lookout for clerks or other persons using the aisleways, and that it was just as much negligence to look in a negligent and careless manner as it was not to look at all. The last two stated that it was just as much the duty of plaintiff to exercise the care of an ordinarily prudent person for her own safety as it was the duty of defendants to exercise such care; that the rights of clerks in a store and customers are reciprocal, and that each owes the same degree of care to avoid injury to one another.

In the light of the evidence in the case we can find no wrong in these instructions. There was some conflict in the evidence as to the precise manner in which the collision of the two women occurred, but it is made quite clear that it consisted in the ordinary, everyday colliding of two pedestrians neither of whom is at the moment, on the lookout for the other and both unknowingly attempting to occupy the same space at the same time. None of these instructions departs from the usual and correct statement of the duties of pedestrians

inter sese,

whether in store aisles, on sidewalks or in any other place where persons gather and move about.