Fuentes v. Lee Ling

TRAYNOR, J.

— This action was brought by plaintiff to recover damages for personal injuries that he incurred when struck by an automobile operated by defendant. The accident occurred at about 7 o’clock on the evening of December 30, 1938, on Third Street between Kirkwood and LaSalle Avenues in San Francisco. Third Street, an arterial boulevard extending north and south, is a main highway between San Francisco and points south. It is approximately eighty feet wide and is marked by white lines dividing six lanes of traffic. Between Kirkwood and LaSalle Avenues, the frontage of Third Street is occupied by stores, apartments, flats, and a public garage and constitutes a business district as that term is used in traffic laws. When the accident occurred it was a clear night and the street was well lighted by street lights and Christmas light streamers strung throughout the block. Plaintiff, clad in a dark suit, was crossing Third Street at right angles from east to west in the middle of the block when he was knocked down by the automobile that defendant was driving south on the west side of Third Street in the second lane of traffic. There is no pedestrian crosswalk in the middle of the block where plaintiff attempted to cross and where the accident occurred. There are such crosswalks marked by white lines at the intersections of Third Street. Plaintiff testified that he was more than halfway across the street when he first saw defendant’s car approaching from a distance of approximately 200 feet, and that he thought that he could cross in safety before defendant’s car traveled the distance of 200 feet or reached the middle of the block, although the car was traveling at a “fast” speéd. A traffic officer’s report described plaintiff at the time of the accident as “under the influence of intoxicants,” and hospital records described plaintiff as having a strong alcoholic breath, but plaintiff tes

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tified that he was not drunk and had taken no intoxicants on the day of the accident. Defendant and his son, who was riding with him in the front seat, testified that they did not see plaintiff before the impact although they were both observing the highway. They, as well as other occupants of the automobile* estimated its speed as between 18 and 20 miles per hour. Witnesses for the plaintiff testified that the automobile was traveling at a rate of 40 to 45 miles per hour. Defendant brought his car to an almost immediate stop after the right front part of the car struck plaintiff. Plaintiff fell to the pavement with his head near the west curb and his feet under the running board of the car at about five feet north of the car’s front bumper. There were no skid marks on the pavement.