Peel v. California Belting Co., Inc.

DOOLING, J.,

pro

tem.

Appeal from a judgment of nonsuit. Plaintiff and appellant, a Western Union messenger sixteen years of age, was struck and injured by an automobile operated by respondent Read, at the intersection of Seventh and Brush Streets in the city of Oakland. The

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battle on appeal centers around the question whether from the evidence appellant was guilty of contributory negligence barring his right of recovery as a matter of law.

The collision occurred at almost the exact center of the intersection of the two streets. Appellant was riding a bicycle in a westerly direction on the northerly side of Seventh Street at about 7:30 P. M. on February 2, 1929. It was already dark and a rain was falling. Appellant intended to make a “U” turn at Brush Street and come back on the southerly side of Seventh Street. In anticipation of such turn when he reached a point fifty feet easterly from Brush Street he looked back and started to give the arm signal for a left turn. At that point he saw a machine about one hundred feet behind him which afterward passed him on the right. He then proceeded about seventy or seventy-five feet to approximately the center line of Brush Street, made a right-angle turn and proceeded approximately twenty-five feet southerly on Brush Street to the center line of Seventh Street, at which point he was struck by respondents’ automobile, which was traveling westerly on Seventh Street and in the center of the street. From the time appellant looked back along Seventh Street at the point fifty feet from Brush Street he did not turn his head again to look easterly on Seventh Street until just the moment before the collision occurred. Then his attention was attracted to the machine approaching him from his left by the reflection of its lights on the wet pavement and looking in that direction he saw it too close to him to avoid it. During all of this time appellant’s rate of travel was three or four miles per hour. Appellant testified that while he did not look easterly along Seventh Street for approaching traffic at any time between the two points mentioned he kept glancing in that direction. When asked what he meant by glancing he said that he meant turning his eyes without turning his head.