Spillers v. Silver

SHINN, J.

In a jury trial plaintiff was awarded damages for injuries sustained when she was struck by an automobile driven by defendant, and defendant appeals.

Two points are urged by appellant as grounds for reversal: first, that the testimony of plaintiff as to the manner in which she was crossing the street proved her to have been guilty of contributory negligence and, second, that plaintiff’s attorney was guilty of prejudicial misconduct in his closing argument.

At about 8:30 p. m. in clear weather, plaintiff and three other women, who were on their way to call upon friends, alighted from a streetcar traveling south on Broadway when it stopped at the northwest corner of the intersection with First Street in Los Angeles. They were intending to transfer to a car which would come from the east on First Street

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and turn south on Broadway. Upon leaving the car, plaintiff walked to the sidewalk on the west side of Broadway to speak to a man whom she mistook for a friend. Her companions proceeded toward the northeast corner of the intersection; two of them had reached the easterly sidewalk and the third was close to it when plaintiff started to follow them across the street. Plaintiff passed in front of the standing streetcar from which she had alighted. She was within the lines of a crosswalk 28 feet wide and when she had crossed into the easterly half of Broadway she was struck by a car operated by defendant, thrown to the ground to the right of the front end of the automobile and suffered severe injuries. Defendant’s car had come from the west on First Street into the intersection and had turned north on Broadway. It was stopped almost immediately after the accident and at that time the middle of the front end of the car was approximately 10 feet east of the middle line of Broadway and 18 feet west of the easterly curb. Plaintiff then lay on the pavement several feet east of the front of the automobile. The circumstantial evidence would indicate that defendant was traveling at a moderate speed and there was no evidence that his speed was excessive. Sharply conflicting versions of the accident were given by the witnesses. Plaintiff testified that she was walking rapidly as she crossed the street; the testimony of a man who was seated upon a front seat of the standing streetcar was. that she was walking at a moderate speed. Defendant testified that he first saw plaintiff as she appeared in the light from the streetcar, that she was then running and ran directly in front of his car before he had time to stop. A short time after the accident two police officers interviewed plaintiff in the receiving hospital, where she had been taken for emergency treatment for two broken legs, fractures of the sacrum and pelvis and other injuries. They testified that plaintiff stated to them that she had been struck by defendant’s car as she was running across the street to the northeast corner to take a streetcar which was standing there. The only eyewitnesses to the accident were the parties and the man who was seated in the streetcar. Plaintiff denied having made the statements testified to by the officers.