McCOMB, J., Dissenting. I dissent.
In my opinion the decision of the present case is dependent upon the answer to this question: Was plaintiff contributorily negligent as a matter of law in failing to look in an easterly direction from the time he left the curb until he was struck by the automobile operated by defendant Ungerf
In my view of the decisions of the Supreme and Appellate Courts of this state this question must be answered in the affirmative. The law is settled that there is a duty devolving [636]upon a pedestrian about to cross a congested street, as the act of an ordinarily prudent person, immediately before placing himself in a position of danger to look in the direction from which danger is to be anticipated, and that this duty is not met by looking once and then turning away, but he must continue to be alert to safeguard himself against injury. Likewise the law is settled that, if the pedestrian fails to meet this standard of care and as a proximate cause thereof injury results to him, he as a matter of law is eontributorily negligent.
In Gibb v. Cleave, (1936) 12 Cal. App. (2d) 468, at page 471 [55 Pac. (2d) 938], Mr. Presiding Justice Nourse says:
“The whole issue is one which has been decided again and again—that a pedestrian does not exercise reasonable care by taking just one look before placing himself in the midst of oncoming traffic upon a public highway. In Moss v. H. R. Boynton Co., 44 Cal. App. 474, 476 [186 Pac. 631], we said: ‘ It was a duty devolving upon plaintiff, as the act of an ordinarily prudent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be anticipated. This was a continuing duty and was not met by looking once and then looking away.’’ (Italics added.) The statement was based on the holding in Sheldon v. James, 175 Cal. 474, 479 [166 Pac. 8, 2 A. L. R. 1493], and has been followed without disagreement in the subsequent cases. (Wright v. Foreman, 86 Cal. App. 595, 604 [261 Pac. 481]; Bullock v. Western Wholesale Drug Co., 91 Cal. App. 369, 372 [266 Pac. 978]; Wing v. Kishi, 92 Cal. App. 495, 499 [268 Pac. 483] ; Chase v. Thomas, 7 Cal. App. (2d) 440, 444 [46 Pac. (2d) 200]; Deike v. East Bay Street Railways, Ltd., 7 Cal. App. (2d) 544, 550 [46 Pac. (2d) 812]; Finkle v. Tait, 55 Cal. App. 425, 432 [203 Pac. 1031] ; Horton v. Stoll, 3 Cal. App. (2d) 687, 690 [40 Pac. (2d) 603] ; Koeppel v. Daluiso, 118 Cal. App. 442, 448 [5 Pac. (2d) 457].) The rule of these cases has often been misunderstood and misquoted. In the last case we have found on the subject it is correctly said that it ‘does not mean that it is a duty to look one way and continue to so look, but rather to look in the direction or directions of anticipated danger, and to continue to be alert to safeguard against injury’. (Lavin v. Fereira, 10 Cal. App. (2d) 710 [52 Pac. (2d) 518].)”
[637]Upon a singularly similar set of facts this court in the case of Flores v. Los Angeles Ry. Corp., (1936) 15 Cal. App. (2d) 576 [59 Pac. (2d) 856], held the plaintiff contributorily negligent and affirmed a judgment predicated upon the granting of a motion for a directed verdict in favor of defendant. At page 579 Mr. Justice White says:
“A review of the evidence in this case, including the testimony of appellant Lupe Plores herself, convinces us that reasonable men could draw only one conclusion from that evidence, namely, an inference pointing unerringly to the fact that had plaintiff used ordinary care for her own safety and looked at any time after leaving the curb until she arrived at the street car track, the accident would have been prevented and she would not have been injured. (Grandy v. Southern Pac. Co., 9 Cal. App. (2d) 441, 443 [49 Pac. (2d) 1127].) The testimony here shows beyond question that appellant Lupe Plores was negligent in stepping up to the tracks of respondent company directly in front of an oncoming street car which was plainly in view at the time she came up to the track, if she had chosen to glance in its direction. In Moss v. H. R. Boynton Co., 44 Cal. App. 474, 476 [186 Pac. 631], it was said: ‘It was a duty devolving upon plaintiff, as the act of an ordinarily prudent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be anticipated. This was a continuing duty■ and was not met by looking once and then looking aioay.’ (Italics added.) This statement was based on the holding in Sheldon v. James, 175 Cal. 474, 479 [166 Pac. 8, 2 A. L. R. 1493], and has been followed without disagreement in subsequent cases. (Citing cases.) This of course does not mean that it is a duty to look one way and to continue so to look, but rather to look in the direction or directions of anticipated danger, and to continue to be alert to safeguard against injury. (Italics added.) (Lavin v. Fereira, 10 Cal. App. (2d) 710 [52 Pac. (2d) 518].)”
In Morris v. Purity Sausage Co., (1934) 2 Cal. App. (2d) 536, at page 542 [38 Pac. (2d) 193], the court says:
‘‘The court instructed that a pedestrian who attempts to cross a street at other than a regular crossing place must exercise greater precautions than at an established crossing, and ‘that the observance of due care under such circumstances is not fulfilled by merely looking to the left and right as he [638]steps upon the street; he must exercise that care during all the time that he was crossing’. (Italics added.) Plaintiff objects to this instruction on the ground that it requires a pedestrian while crossing to look in all directions at all times. The instruction merely required due care in view of the increased hazard during all the time that the increased hazard continued, and correctly stated the rule in this regard. (Citing cases.) Salomon v. Meyer, 1 Cal. (2d) 11 [32 Pac. (2d) 631], is not a decision to the contrary.”
In Deike v. East Bay Street Rys., Ltd., (1935) 7 Cal. App. (2d) 544, at page 550 [46 Pac. (2d) 812], the court says:
“In Moss v. H. R. Boynton Co., 44 Cal. App. 474, 476 [186 Pac. 631], it is said: ‘It was a duty devolving upon plaintiff, as the act of an ordinarily prudent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be anticipated. This was a continuing duty and was not met by looking once and then looking away. (Italics added.) In the exercise of ordinary care it is the duty of a pedestrian to look to the right and to the left whenever he has voluntarily put himself in a position which may be one of peril coming from either direction. ’ . . .
“In the light of these decisions it appears in the case at bar without conflict or contradiction that when plaintiff left the place of safety on the sidewalk and started diagonally across the street-ear tracks on East Eighteenth street he looked over his shoulder to the east, a point from which cars were to be expected, and seeing no street car he traveled approximately ninety feet without again looking for approaching cars and did not see the ear until it was practically in collision with him. Had he used ordinary care or caution he would have looked for approaching ears during his walk across the right of way and thus would have at least seen the light on the car and have avoided the accident. He said that it was a dangerous crossing; that it was dark and he could see only from the point where he started to cross the street to the corner of Fourth avenue (a distance of about one hundred two feet). With a knowledge of all of these facts his conduct amounted to contributory negligence as a matter of law, which negligence proximately contributed to the accident.”
[639]In Bullock v. Western Wholesale Drug Co., (1928) 91 Cal. App. 369, at page 372 [266 Pac. 978], the court says:
“Respondents, among other authorities, cite Gary South Coast Agency v. Pacific Elec. Ry. Co., 56 Cal. App. 469, 472 [205 Pac. 883], Finkle v. Tait, 55 Cal. App. 425 [203 Pac. 1031], and Moss v. H. R. Boynton Co., 44 Cal. App. 474 [186 Pac. 631], in which case the court says: ‘It was a duty devolving upon plaintiff, as the act of an ordinarily prudent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be anticipated. This was a continuing duty and was not met by looking once and then looking away.’ ” (Italics added.)
In Wing v. Kishi, (1928) 92 Cal. App. 495, at page 498 [268 Pac. 483], it is said:
“It was the duty of the deceased, as the act of an ordinary prudent person, immediately before placing himself in a position of danger, to look in the direction from which danger was to be anticipated. This was a continuing duty and would not have been met by looking once and then looking away. (Italics added.) In the exercise of ordinary care it was the duty of deceased, as well as it is the duty of every pedestrian, ‘to look to the right and to the left whenever he has voluntarily put himself in a position which might be one of peril, coming from either side’. (Sheldon v. James, 175 Cal. 474 [2 A. L. R. 1493, 166 Pac. 8] ; Moss v. H. R. Boynton Co., supra; Straten v. Spencer, 52 Cal. App. 98 [197 Pac. 540]; Davis v. Breuner Co., 167 Cal. 683 [140 Pac. 586] ; Lord v. Stacy, 68 Cal. App. 517 [229 Pac. 874].) ”
In Ogden v. Lee, (1923) 61 Cal. App. 493 [215 Pac. 122], in affirming a judgment predicated upon the granting of defendant’s motion for a nonsuit upon the ground that plaintiff was contributorily negligent the court at page 496 says:
“In the case of Moss v. H. R. Boynton Co., 44 Cal. App. 474 [186 Pac. 631], the rule is stated as follows: ‘It was a duty devolving upon plaintiff, as the act of an ordinarily prudent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be expected. This was a continuing duty and was not met by looking once and then looking away. (Italics added.) In the exercise of ordinary care it is the duty of a pedestrian to look to the right and to the left whenever he has voluntarily put himself in a position which may be one of peril coming from either [640]direction. (Sheldon v. James, 175 Cal. 474, 478 [2 A. L. R. 1493, 166 Pac. 8].) ’ Measuring the facts of this case by the rule thus stated, the plaintiff was guilty of contributory negligence. (Finkle v. Tait, 55 Cal. App. 425 [203 Pac. 1031]; Chrissinger v. Southern Pac. Co., 169 Cal. 619 [149 Pac. 175].)”
In Moss v. H. R. Boynton Co., (1919) 44 Cal. App. 474 [186 Pac. 631], in affirming a judgment based upon the granting of defendant’s motion for a nonsuit upon the ground that plaintiff was contributorily negligent, at page 476 the court says:
“It was a duty devolving upon plaintiff, as the act of an ordinarily prudent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be anticipated. This was a continuing duty and was not met by looking once and then looking away. (Italics added.) In the exercise of ordinary care it is the duty of a pedestrian to look to the right and to the left whenever he has voluntarily put himself in a position which may be one of peril coming from either direction.”
In Sheldon v. James, (1917) 175 Cal. 474 [166 Pac. 8, 2 A. L. R 1493], in holding that plaintiff was guilty of contributory negligence as a matter of law in not continuing to look to the right and left after having stepped into a street he was about to cross, at page 479 Mr. Justice Henshaw says:
“The observation of ordinary care by such a pedestrian is not fully performed by merely looking to the left or right as he steps upon the street. The observance of that care is imperative upon him during all of the time that he is crossing. (Italics added.) (Scott v. San Bernardino etc. Co., 152 Cal. 604 [93 Pac. 677].)”
It is to be noted that our Supreme Court denied applications for hearing in Gibb v. Cleave, supra, Flores v. Los Angeles Ry. Co., supra, and Ogden v. Lee, supra. The only California decision which I have found which might indicate a contrary rule is Salomon v. Meyer, (1934) 1 Cal. (2d) 11 [32 Pac. (2d) 631], which case is distinguishable on its facts from the other cases above cited, in that the testimony showed that plaintiff saw the automobile being driven by defendant and misjudged the speed at which it was traveling. In any event, the decision in that ease has apparently not been relied upon in any subsequent case, nor has it been extended beyond [641]facts which are identical therewith; and it is of course prior to the Supreme Court’s denial of applications for hearing in Gibb v. Cleave, (1936) and Flores v. Los Angeles Ry. Co., (1936) supra. If the majority opinion in this case is to prevail, the court is expressly overruling the decisions above cited and is establishing a new rule of law in this state.
I believe in the doctrine of stare decisis, that is, that the law is a science, the leading principles of which are settled and should not be open for discussion upon elevation to the bench of every new judge, however subtle his intellect, profound his learning, logical his reasoning, or acute his sense of justice. Upon the certainty of rules of law citizens enter into contracts, purchase property, and otherwise plan their course of action. Law is founded upon reason, but this means the reasoning which is the result of the general intelligence, learning, and experience of mankind over a protracted period of time and not of the individual reasoning of one or of several judges. (15 C. J. (1918) 916, see. 304.)
I am also of the opinion that the rule of law which has obtained in this state for twenty years (Sheldon v. James, supra), requiring a pedestrian to make reasonable use of his eyes and ears to avoid being injured when crossing a public thoroughfare is a sound and beneficial principle of law. I therefore cannot join in the opinion of my learned associates, in view of the conceded facts of the instant ease that plaintiff did not look to his right or left at any time after leaving the curb and proceeding in a southerly direction on Broadway across Ninth Street, since if he had looked at any time after stepping into the street he would have seen the automobile driven by defendant Unger and would have avoided being injured.
In my view of the law and the facts of this case the order from which an appeal has been taken should be reversed.
. A petition by appellants to have the cause heard to the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 2, 1938.