Stone v. Gill

CONREY, P. J.

Action to recover damages for personal injuries resulting from a collision between plaintiff and

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an automobile driven by the defendant. Judgment was entered in favor of the plaintiff for the sum of three thousand seven hundred dollars of which two hundred dollars covered expenditures for medical attendance and nursing, and the remainder of the award was allowed as general damages' for the injuries received. Defendant appeals from the judgment.

On the evening of February 20, 1919, between 6 and 7 o’clock, plaintiff was walking west on the public highway known as West Fern Avenue, in the city of Redlands. The complaint alleged that while he was thus walking, the defendant negligently drove his automobile along the street in the same direction in which the plaintiff was walking and carelessly and negligently struck the plaintiff and ran over him, thereby causing the injuries for which recovery was sought. The grounds of appeal which are presented for consideration relate solely to the sufficiency of the evidence to sustain the findings. Appellant contends (1) that the evidence is insufficient to prove actionable negligence on his part; (2) that the plaintiff was guilty of contributory negligence which constituted a proximate cause of the accident; (3) that the damages awarded are excessive.

[1]

From the plaintiff’s testimony it appears that he walked westerly near the middle of Fern Avenue several hundred feet before he was struck by defendant’s automobile ; that it had been raining earlier in the evening, but was not raining during this walk on Fern Avenue nor at the time of the accident; that at the time of the accident “it was not misting at all”; that the sidewalks were wet and slippery, and, on account of trees, were considerably darker than the street; that for this reason there was less danger of slipping on the street than while walking on the sidewalks; that while walking on Fern Avenue at the time of and prior to the instant of the collision he was watching carefully for objects coming toward him. from the front, but did not look behind; that he did not see appellant’s machine or hear it—that there was no signal or horn blown; that there were street lights fixed to posts so that the greater part of the light was reflected on to the street. The plaintiff’s wife testified that after the accident defendant told her that he ran into the plaintiff; that “his