Butler v. Malis

California Court of Appeal Aug 20, 1962 No. Civ. 25674Published

Before: Files

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Holding. The court held that there was sufficient evidence for a jury to conclude that a pedestrian in a marked crosswalk was contributorily negligent when he ran into traffic during a rainstorm, and that the trial court's reliance on an overruled appellate opinion in its memorandum did not invalidate the correct legal result.

Issues

Whether there was evidence to support the jury's implied finding that the defendant was not negligent or that the plaintiff was contributorily negligent.
Whether the trial court's reliance on an overruled appellate opinion in its memorandum requires reversal of the judgment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“There is evidence here from which the jury could reasonably conclude that plaintiff failed to act with due regard for his own safety, and that his negligence contributed to the accident.”

“Since the trial judge applied the law correctly, what he cited as authority is of no consequence.”

FILES, J.

Plaintiff, a pedestrian, was struck by defendant’s automobile while in a marked crosswalk on Main Street opposite the Los Angeles City Hall. A jury returned its verdict for defendant. Plaintiff moved for a directed verdict on the issue of liability, and afterwards for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. Each of those motions was denied, and plaintiff has appealed from the judgment. The sole question here is whether there is evidence to support the implied finding of the jury that defendant was not negligent, or that plaintiff was guilty of contributory negligence.

The evidence was in conflict, and under the familiar rule we must accept the evidence most favorable to the judgment on the points of conflict.. So viewed, the evidence is as follows:

The accident occurred at 9 a. m. on a Wednesday morning in February during a heavy rain. Defendant was southbound on Main Street in the second lane from the center line, driving between 10 and 15 miles per hour, with her headlights on and her windshield wipers operating. There was a solid line of traffic moving at about the same speed in the lane to defendant’s left. She was “paying attention to everything.” Visibility was impaired and the street was slippery. Plaintiff, wearing a dark raincoat, suddenly appeared in the crosswalk in front of defendant from the east (i.e., from defendant’s left). He was bent down and running fast. The vehicles in the lane to the left had not stopped for the pedestrian. Plaintiff appeared to slip in front of defendant’s car, and the right front fender struck him. Defendant stopped her car with the front wheels just beyond the north line of the crosswalk. A police officer who observed the plaintiff from the time when plaintiff was east of the center line of the street testified that plaintiff was running and did not appear to be looking to either side.

[40]

Plaintiff contends that this case is controlled by

Novak

Dewar,

55 Cal.2d 749 [13 Cal.Rptr. 101, 361 P.2d 709], and

Gray

Butler v. Malis

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FILES, J.

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