Mitrovitch v. Graves

THOMPSON, J.

A judgment for $600 was rendered against the defendant in accordance with the verdict of a jury which was returned in a suit for damages for personal injuries sustained by the plaintiff as a result of having been struck by an automobile while he was walking across a street in Marysville.

The appellant contends that the verdict and judgment are not supported by the evidence for the reason that it appears, as a matter of law, the plaintiff was guilty of contributory negligence in violating the provisions of section 562 of the Vehicle Code by failing to “yield the right of way" to the automobile, while he was walking across Fifth Street at a place other than the regular pedestrians’ pathway.

The accident occurred midway in a block on Fifth Street in Marysville at 8 o’clock on the evening of November 4, 1936. It was dark, but the street was well lighted in that vicinity. The street lamps were burning, and the lights from a Texaco service station near by illuminated the highway at that point so that an object could be plainly seen at a considerable distance. Fifth Street extends east and west. It is paved and fifty-six feet in width between the curb lines. Along the center of Fifth Street there are double tracks of the Sacramento Northern Electric Railroad. These tracks occupy a space of about sixteen feet in width, leaving twenty feet of the street unobstructed on either side thereof. We assume the rails are flush with the surface of the street and that they do not obstruct free use of the street throughout its entire width, when trains are not passing. I Street intersects Fifth Street at right angles on the easterly side of the block in which the accident occurred. J Street intersects Fifth Street at right angles one block west from I Street. The Texaco service station occupies about fifty feet of space at the northwest corner of I and Fifth Streets. Directly across Fifth Street, at the southwest corner of I and Fifth Streets there is a space occupied by used cars.

[651]

The plaintiff, at the time of the accident, was a high school student, seventeen years of age. At 8 o’clock on the evening of November 4, 1936, accompanied by his friend, Jack Dunn, the plaintiff drove his automobile west along Fifth Street. When he reached I Street he drove across to the southerly side of Fifth Street and stopped in front of the used car premises, where he met and entered into conversation with Mr. Fenton, the proprietor of that place, who was an acquaintance of the plaintiff. As they stood on the sidewalk conversing, George Myers, another friend of plaintiff, drove his truck northerly up I Street, turned to his left and parked near the curb line on the northerly side of Fifth Street in front of the Texaco service station. Observing the plaintiff on the opposite side of Fifth Street, Myers hailed. He remained seated in the cab of his truck. There were then no other machines in sight on Fifth Street, except one car which was parked on the northerly side at a considerable distance ahead of the truck. The plaintiff immediately crossed Fifth Street and stood with his right foot on the left running-board of the truck, while he talked for a few moments with his friend Myers. Having completed their conversation, the plaintiff turned, looking to his right whence approaching cars might be expected, intending to recross Fifth Street to the place where he had left his machine. Until that time, no automobiles had passed either up or down Fifth Street. No moving cars were then in sight. There was apparently no traffic at that time. The plaintiff said: “I had a foot on the running board and turned like this (to his right) and took about two steps and I stopped when I saw two cars coming towards me. I looked towards . . . Marysville. That would be my right side as I looked. I looked east. I saw two cars coming towards me. One was a black coupe, the one closest to me. The one that was furthercst was a sedan. When I first saw those two cars they were in the intersection at I Street! . . . The coupe which was in front, was closer to the north line of the north track. . . . When I observed the automobile coming I stopped. The automobile came closer and as the coupe passed me I turned to watch it go down the street to see if any cars were coming in the other direction before I walked across and I turned back to see where the sedan was and when I was struck and I didn’t quite get to see the sedan. I was