Cohen v. Bay Area Pie Co.

BRAY, P. J.

Plaintiff appeals from judgment, after jury verdict, in favor of defendants.

Questions Presented

1. Justification for instruction on waiver of right of way.

2. Sufficiency of evidence.

Evidence

About 10:30 a.m. of a clear, sunny day, plaintiff, 74 years of age, arrived at the.northwest corner of Van Ness Avenue and Sutter Street, San Francisco, intending to cross Van Ness Avenue. The intersection is controlled by stop and go traffic

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signals for pedestrians and vehicles. Van Ness Avenue is 84 feet wide at that point and contains 7 traffic lanes, 4 for southbound traffic and 3 for northbound traffic. A traffic engineer for the City of San Francisco testified that at the time in question the signal for eastbound vehicular traffic and pedestrian traffic on Sutter Street was green for 18 seconds and yellow for 4 seconds.

A concrete traffic divider and pedestrian island divided the southbound traffic lanes on Van Ness from the northbound lanes. There was a painted crosswalk for pedestrian traffic across Van Ness. The concrete island abutted into the crosswalk from the north for approximately 1 foot.

Plaintiff’s version of the accident is as follows: When the traffic signal turned green she looked to her left and right and seeing no traffic stepped off the curb into the crosswalk and proceeded to cross Van Ness. She proceeded directly across the street entirely in the crosswalk and was struck by defendant company’s truck coming from her right rear, just as she had passed beyond the concrete island. She testified that she did not see the truck at any time prior to impact and that at no time had she stepped upon the pedestrian island.

The driver of the truck, defendant Dvorak, testified that he was going east on Sutter Street and stopped his vehicle at the westerly intersection of Van Ness Avenue for the red light. When the light changed to green, he proceeded into the intersection, at which time there was traffic going opposite to him, across Van Ness, west on Sutter. He again stopped his vehicle to allow the westbound traffic to pass since he intended to make a left turn. He intended to turn into the inside northbound traffic lane, closest to the pedestrian island. When he started to make the turn, for the first time he saw plaintiff on the island with her back to him, looking north, away from his vehicle. As he entered the crosswalk he stopped the truck because plaintiff then “seemed confused. She didn’t seem to know where she was going at the time.” Plaintiff then stepped off the island into the left front tire of the truck. Dvorak said the impact occurred about 2 feet from the island, some 3 feet north of the crosswalk, (A police officer testified that he was told by defendant driver that the point of impact was within the marked crosswalk.) Plaintiff fell to the street, got up, and walked around the front of the truck to the sidewalk on the east side of Van Ness. She- suffered injuries to her left arm, left hip, and left great toe.