Bellinger v. Hughes

SHAW, J.

Action to recover damages for personal injuries. Judgment was rendered for plaintiff, from which, and an order denying defendant’s motion for a new trial, he prosecutes this appeal.

The injury, damages for which are sought, was the result of a collision between an automobile operated by defendant Hughes and plaintiff while she was crossing from the north side of Colorado Street, in Pasadena, to the south side there

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of, at a point along the east line of Los Robles Avenue which at right angles intersects Colorado Street. The record here presented is not only meager, but to a large extent unintelligible, by reason of the fact that a map or plat, not brought up in the record, was used by witnesses, who pointed out thereon positions and places knowledge of which is necessary to a proper understanding of- the relation of the parties to the location where the injury occurred. But to the court this evidence, without the map, is meaningless.

Numerous errors are assigned, only one of which, however, we deem necessary to consider, as upon this we are of the opinion that the judgment and order must be reversed. This error consists in giving to the jury, without qualification thereof, an instruction numbered 17, as follows: “If an automobile driver not being able to see a street crossing which he is approaching because of a passing street-car, instead of stopping his machine merely changes its direction so as to go around the car and in doing so comes suddenly upon and runs into and injures a person, he is guilty of gross negligence and is liable for all damage proximately caused thereby.” It appears that a street-car track was maintained along Colorado Street west of Los Robles Avenue, which at the intersection was extended in a southerly direction along the latter street. Immediately before the time of the injury a street-car operated upon said line was on the track at a point just west of the line of Los Robles Avenue and about to turn southerly into said avenue, when plaintiff, who was crossing Colorado Street, and had reached a point therein about half or two-thirds of the way between the street-car tracks and the curb, saw the automobile on the south side of Colorado Street and near the west line of Los Robles Avenue. She testifies that this automobile appeared to be held up by the street-car, which was about to turn in front of it into Los Robles Avenue, or for other reasons had slowed down. At all events, she says she was sure, since the street in front of her over which she was crossing was clear, that she had time to reach the south curb line thereof before the automobile would reach the line of her travel in effecting the crossing. When eight or ten feet from the south curb line of Colorado Street she was struck by the motor car and knocked down. There is evidence, though contradicted, tending" to show that plain