Moore v. Bishop

CRAIG, Acting P. J.

The respondent, a minor of the age of about nine years, was injured by a truck of the appellant copartnership, which was being driven by appellant Swadener, while attempting to cross a public street in the city of Los-Angeles. In an action by her guardian

ad litem

she was awarded judgment in the sum of $800, and the defendants appealed.

Respondent was walking with other children in an easterly direction on the sidewalk along the southerly side of Fourth Street. The truck was traveling in a southerly direction on Soto Street toward Fourth Street. Both entered the intersection at about the time the street signals changed to direct traffic easterly and westerly. The respondent testified that when she stepped into Soto Street she looked in each direction, and that the only machines she saw seemed to be about one block away. There is a conflict of evidence as to whether one or both signals had sounded when the children left the curb. One of them swore that the second signal had sounded when the truck arrived at the southerly line of the street-car tracks, and the driver testified that it was running at about twelve to fifteen miles an hour. It could reasonably have been inferred by the jury that appellant Swadener drove into the intersection without slackening speed nor contemplating the possibility of a change of signals or the presence of school children on the street.

[27]

Appellants’ various contentions—that is, that there was no evidence of negligence, that the respondent was guilty of contributory negligence, and that an instruction as to the duty of the driver to foresee danger of children at the intersection and to control his truck accordingly was erroneous—present questions which under the circumstances of the case lay to a great extent within the province of the jury and the discretion of the trial court. As to whether or not the weight and speed of the vehicle, the importance and exigency of business as compared with safety, the proximity of a street crossing and imminence of stop-signals, as well as the rights of pedestrians, were all considered and observed, remained for the jury to determine. They were questions of fact which, if supported by any substantial evidence, were conclusively ascertained at the trial and there finally decided. A city ordinance introduced by the defendants provides that when- a bell of the traffic signal rings no traffic shall enter an intersection until the green or “go” signal is shown, that “it shall be unlawful for any pedestrian to cross the roadway other than with released traffic”, and that the “green” signal “requires that the traffic shall move and remain in motion, except when stopped for the purpose of avoiding an accident or in case of other emergency”, etc. ■ The rule applicable to steam railroads, that an engineer need not stop his train, but might assume that one approaching the track would halt or leave the right of way, is stressed by the citation of numerous authorities appropriate to such cases. And it is insisted from the foregoing that if respondent entered the intersection contrary to the provisions of the ordinance, she would be guilty of a violation of law, and hence of contributory negligence. This would compel the inference that the driver of an automobile upon urban highways, in thickly populated centers, may proceed with an assurance and momentum commensurate with the independence and dispatch of an interurban steam trunk line over a private right of way. In view of the record in this case, either proposition would be abhorrent to the law and to reason. Not alone is there evidence from which the jury might properly have concluded that the children did not violate the ordinance in this respect, but they would have been justified in finding, as doubtless they did, from the