Minor v. Foote

THE COURT.

Plaintiff brought this action to recover damages for personal injuries sustained as a result of being struck by an automobile belonging to defendant Adelaide MacSweeney and driven by defendant Georgena Foote. At the conclusion of the trial the action was dismissed as to Adelaide MacSweeney. Plaintiff sued for $15,000 general damages and $777.06 special damages. The defendant Georgena Foote, although denying liability for the accident, stipulated during the trial, which took place before a jury, that plaintiff had necessarily expended the sum of $777.06 for the treatment of her injuries. The jury returned a verdict in plaintiff’s favor, but disregarding the stipulation above mentioned awarded her damages for only $500. Judgment being entered for that amount, plaintiff moved for a new trial, and the motion was granted upon the grounds of “insufficiency of the evidence to justify the verdict

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and that the verdict is against law, said verdict having been rendered in favor of the plaintiff for a sum less than the amount stipulated by the parties as the special damages to the plaintiff.” An appeal was taken by the defendant from the order granting the new' trial, and in support thereof she contends that the evidence shows that plaintiff’s own negligence was the sole proximate cause of her injury and that defendant was not guilty of any negligence, and that therefore, “conceding for the purposes of argument that the damages awarded her were inadequate, it does not follow that an order granting a new trial for such reason may be sustained if the evidence shows that plaintiff ivas guilty of negligence as a matter of law which proximately contributed to her injuries, or if the evidence fails to show negligence on the part of defendant and appellant. ’ ’ The evidence shows that the accident occurred in Berkeley on September 16, 1926, at about 7:40 P. M., while plaintiff was attempting to cross Atherton Street where it joins Allston Way. The latter street forms the south boundary of the grounds of the University of California, and is occupied by a double-track street railway line. Atherton Street enters Allston Way at right angles on the south side thereof, but does not cross Allston Way. At the time of the accident it was dark, the darkness being intensified by trees and the absence of street lights. Immediately preceding the accident, Mrs. Minor, the plaintiff, who was seventy years of age, but active and in the full possession of her faculties of sight and hearing, and her daughter Ruby Minor, were walking in a westerly direction along the sidewalk on the southerly side of Allston Way. When they reached the southeast corner of the streets they stopped “and made a survey of the conditions.” Mrs. Minor testified that they first looked to the left down Atherton, then ahead (west) up Allston, and then continued on their course straight ahead to cross Atherton; that when they reached a point about the middle of the street she heard her daughter scream and turning her head to the right she saw the light of an automobile, and that she was struck almost instantly. The testimony given by Mrs. Minor’s daughter was substantially the same, but she stated that when they reached Atherton Street and before venturing across they “looked in every direction to see if any automobiles were approaching,” and