Mitsuo Umemoto v. McDonald

THE COURT.

This action was brought by plaintiff to recover damages for the wrongful death of his minor daughter, resulting from personal injuries caused by a truck and trailer driven by defendant McDonald. The scene of the occurrence was a street intersection in El Monte, California, to wit: the point where Valley Boulevard, an east-west boulevard, is intersected on the south by Lexington Avenue, which avenue, however, is not cut through to the north. The minor, a sixteen year old girl, started from the southeast corner of Lexington Avenue and Valley Boulevard, to cross Valley Boulevard from south to north in a designated twelveffoot pedestrian crosswalk or zone. Defendant McDonald was driving a ten-ton truck and trailer westerly along Valley Boulevard at a speed of ten or twelve miles an hour. The day was clear and the driver’s view, on approaching the crosswalk, was unobstructed. He testified that when he first saw the girl, she was running and was about one-third of the distance across the boulevard, in the crosswalk. The girl was struck by the left front of the truck either about as she reached the north half of the crosswalk or after she had run some five to ten feet northwesterly out of the crosswalk.

The jury, upon trial of the cause, returned a $3,500 verdict for plaintiff, from which defendant McDonald appealed on two grounds: (1) That the deceased was guilty of contributory negligence as a matter of law, and (2) that the trial court committed prejudicial error in sustaining an objection to an impeaching question asked a witness, Taduko Midukami.

In support of the first contention appellant cites a local ordinance, which was duly introduced in evidence, and among other things provides that “When within any business district, no pedestrian shall cross a roadway other than by a crosswalk” and “It shall be unlawful for any person to be in any roadway other than in a safety zone or crosswalk, provided that this provision shall not be construed to

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prevent the necessary use of a roadway by a pedestrian.” Appellant also' calls attention to section 131%, subdivision (c) of the California Vehicle Act (Deering’s Gen. Laws, 1931, Act 5128, vol. II, p. 2515), which provides: “Every pedestrian crossing a roadway, at any point other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the roadway, provided that this provision shall not relieve the driver of a vehicle or the pedestrian from the duty to exercise due care. ’ ’ From this premise appellant argues that as every witness in the case, save Taduko Midukami whose testimony will be hereinafter discussed, agreed that at the time of impact the deceased was running and was outside of the confines of the crosswalk, she was guilty of contributory negligence as a matter of law. Appellant, in this connection, cites