Hine v. Carmichael

BURKE, P. J.

Plaintiff, a pedestrian, was struck by an automobile owned by defendant Arthur Benjamin Carmichael, Sr., which was being operated by his codefendant and son, Arthur Benjamin Carmichael, Jr., with the permission and consent of the father. Following a trial without a jury judgment for plaintiff for $4,263 was entered January 20, 1961. Defendants’ motion for new trial was granted on February 21,1961, “. . . unless the plaintiff . . . files a remission of judgment in writing, in the sum of $1,000.00. ...” This remission having been filed resulted in a judgment being entered in the sum of $3,263 from which defendants appeal.

The parties signed a joint pretrial statement, which was made a part of the pretrial order, under which it was agreed that the accident took place on San Gabriel Place approximately 250 feet north of Rosemead Boulevard in Pico-Rivera, Los Angeles County; that the automobile. was being operated in a general northerly direction on San Gabriel Place . . . traveling at a speed of approximately 25 to 30 MPH. The collision did not occur at an intersection. The pedestrian collided with the left side of the Defendant’s automobile.” In its findings of fact and conclusions of law the court found that the defendant driver was driving at an excessive rate of speed, was negligent and that the injuries to plaintiff were the direct

[665]

and proximate result of such negligence. A highway patrolman testified that the posted speed limit at the point of the collision was 25 miles an hour. While the evidence as to speed was somewhat in conflict it is apparent from the joint pretrial statement, in which a speed of 25 to 30 miles an hour was admitted, and from other supporting evidence, that the trial court’s finding of negligence on the part of the defendant driver was supported by the evidence. Such finding is binding upon this court.

With respect to the issue of contributory negligence set forth in the pleadings, in the joint pretrial statement and pretrial order, the trial court makes no specific finding. Defendants contend that plaintiff was guilty of negligence which contributed proximately to the collision and injuries as a matter of law.

Plaintiff testified that she and an escort had attended a bowling alley and then went to the Corral on Rosemead Boulevard, arriving at approximately 11 p. m.; that they had played shuffleboard and that she had one beer there; around midnight she left the Corral by the back door toward and across San Gabriel Place to a bowling alley on the east side of San Gabriel Place; there she made a telephone call and thereafter began to retrace her steps from the bowling alley across the street to the Corral. The point of crossing was roughly in the middle of the block; there was no crosswalk; she looked left and right after she cleared the cars parked in front of the bowling alley; she saw no vehicles approaching from either side and proceeded to cross the street; she looked again before reaching the center of the street and saw nothing; she stated that when she was about in the middle of the street “When I heard the