Regan v. Los Angeles Ice & Cold Storage Co.

BRITTAIN, J.

The defendant appeals from a judgment for $824 and costs in a suit for damages for personal injuries sustained by the plaintiff.

There is only one question to be determined. It was raised by the defendant’s motion for nonsuit, which was denied. It is as to whether or not the trial court should have determined, or this court can determine, as a matter of law that the plaintiff was guilty of contributory negligence under the peculiar facts of this ease. The same question is presented by the contention that the evidence is insufficient to support the findings.

At the time of the accident an automobile, described as a Buick touring car, with its top up, was standing close to the curb on the south side of East Seventh Street, about 150 feet east of Alameda Street, in Los Angeles. It had been struck earlier in the morning and slightly injured, apparently before it was parked on East Seventh Street. After it was parked it was headed east in the direction of traffic on the side of the street on which it stood. The plaintiff and two other men had crossed from the other side of the street to speak to a man in the machine, and, their attention being called to the abrasions on the left rear mud

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guard and on the spare tire irons and the spare tire at the back, they were examining the rear parts of the machine. They had been there about five minutes. The street at that point was sixty to seventy feet wide, and there were no obstructions between the standing machine and the north side of the street. The accident occurred in the morning of a clear day. At the moment of the accident the plaintiff was standing close to and back of the left rear mud-guard of the machine. One of his companions, who escaped injury, was standing at his right, back of the body of the machine, and another, who was also struck and who subsequently died, was standing at the plaintiff’s right, on or with one foot on the running-board. The plaintiff had not looked back to ascertain if another machine was approaching after crossing the street. There was a slight curve in the street, so that if an oncoming machine from the rear had followed a perfectly straight course it would have approached and run into the right-hand curb.

While the plaintiff was standing in the position indicated, a heavy truck owned by the defendant and operated by its employee approached and crossed Alameda Street. Several boys were trying to climb on the truck and the driver turned in his seat to tell them to get off. He crossed Alameda Street without looking where he was going and did not 'turn his face forward until the truck he was driving had struck the plaintiff, knocking him under the standing machine. The truck also struck the rear mud-guard of the machine and hit the man who subsequently died.