Jones v. Heinrich

STEEL, J. pro tem.

This is an appeal by the defendant from an order granting plaintiffs’ motion for a new trial after judgment entered, upon the verdict of the jury, in favor of the defendant.

The order granting a new trial was general in form and did not specify insufficiency of the evidence as one of the grounds upon which it was based (Code of Civil Procedure, section 657) therefore we will limit our consideration to the errors in law alleged to have been committed by the trial court in granting the motion.

While appellant urged that the evidence shows contributory negligence upon the part of plaintiffs’ decedent, as a matter of law, and is insufficient as a matter of law, to show any negligent act upon the part of defendant which would sustain a finding of negligence against him, we are satisfied from an examination of the record that the evidence presents questions of fact rather than law. The principal question presented upon this appeal involves the giving and the refusal to give certain instructions, it being the contention of the respondents that such alleged error was sufficient to warrant the court in granting a new trial. Preliminary to considering this question we will set forth so much of the evidence as is necessary to an understanding and discussion of the factual situation.

The action here arises out of an automobile-pedestrian accident occuring on McKinley Avenue, a few blocks south of the city limits of the city of Stockton, and in which plaintiffs ’ decedent, Mrs. James Francis, was struck and killed by an automobile driven by the defendant Fred C. Heinrich.

McKinley Avenue runs north and south, and is intersected near the scene of the accident by Eighth and Ninth Streets running easterly and westerly at right angles to McKinley Avenue, which streets do not continue directly across McKinley Avenue but have a definite jog or offset between

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their entrance to and their departure from McKinley Avenue. The decedent with her daughter and son-in-law had arrived from Keno, and were stopping in an auto court on the easterly side of McKinley Avenue, and on the evening of their arrival shortly after eight o’clock, the decedent left the auto camp, crossed McKinley Avenue to a fruit stand, made a purchase, and after returning to the cabin decided she wanted some oranges, so again crossed the street to the fruit stand, and it was on this second trip that the accident occurred. The highway is what may be referred to as a three-lane highway, approximately 78 feet in width with two white lines marking the center lane used for passing. The defendant Heinrich, accompanied by his wife, son, father-in-law, mother-in-law and nephew were traveling north on the highway; it appears that there were no vehicles approaching within a quarter of a mile or more, and that shortly prior to the accident the defendant had slowed down to 25 or 30 miles per hour according to his testimony, they having then entered the residential district, the speed limit of which, according to the posted signs, was 25 miles per hour. It is the testimony of the defendant that he was traveling at this speed when he first saw Mrs. Francis, that his lights were on low, and that he could see from 75 to 100 feet ahead, and that when he first saw the decedent she was walking east or from his left, and was stepping across the most easterly white line into his lane of traffic; that she was then about 45 or 50 feet from him; that he put on his brakes slowly, not with the intention of stopping, and turned to his left into the center lane to pass behind her, and when about ten feet from her put on his brakes hard as she stepped backwards into his new lane of travel. At this time he was traveling about 15 miles per hour. He struck the decedent with the right front of his car between the fender and the light, the car coming to rest with the right front wheel on her body. He then released his brakes and moved forward to the north about 8 feet and stopped his car. The defendant, his son and father-in-law, seated in the front seat of defendant’s ear, were the only eye witnesses to what occurred.