Gaston v. Hisashi Tsuruda

WILLIS, J.,

pro tem.

This is an appeal from a judgment for damages arising from a collision between a pedestrian and an automobile truck. Plaintiffs charged negligence of defendant and the latter denied any negligence on his part and pleaded contributory negligence. The court, sitting without a jury, found that the collision and injuries were occasioned by the negligence of defendant without any

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negligence of plaintiffs contributing thereto. Appellant contends that the evidence conclusively shows that plaintiff Emma F. Gaston, the only plaintiff personally injured, was guilty of negligence proximately causing the accident, and that defendant was not guilty of any negligence proximately causing the same.

The evidence is without dispute or conflict as to all essential facts, except the usual variation in estimates of speed, and tells the following story: At about 5:45 o ’clock P. M. of October 27, 1932, Emma F. Gaston, aged 72 years, active and with good sight and hearing, and her husband, F. E. Gaston, aged "74 years, stepped off the rear steps of a southbound street-car into a safety zone on Central Avenue at its intersection with 84th Street, in Los Angeles. At that point Central Avenue was 66 feet wide and 84th Street was 36 feet wide between curbs. The safety zone was 55 feet in length from the north property line of 84th Street and extended northward beside the street car track. Its easterly line was 42% feet from the curb on the east side of Central Avenue. There was a pedestrian crosswalk marked with lines on the pavement at the north side of the intersection in question. "When the street car moved away to the south, plaintiffs started, side by side, directly for the east curb of Central Avenue. They saw headlights of two automobiles approaching from the south about two blocks away. It was dusk and the street lights were lit. After progressing some 10 feet into the east half of the street beyond the double car tracks, plaintiffs saw the automobiles were then about a block away. At this point the husband spoke to his wife to wait and see which way the automobiles would go, but she appeared not to hear him. She was then about three feet in advance of her husband and was “looking all the time back and forth” and “kept watching the lights” of the automobiles. She thought she had plenty of time to cross in front of them, but as she was nearing the curb she saw they were coming so rapidly that she started to increase her speed so as to reach the sidewalk. She saw one of the machines change its course and go back of her on the street car tracks, and the next thing she knew she was struck by the other, it being the Chevrolet stake body truck operated by defendant, and found herself lying on the pavement.