Kletz v. MacAdam

STURTEVANT, J.

Plaintiff commenced an action to recover damages for injuries sustained from being hit by an automobile driven by the defendant. The defendant interposed an answer denying many allegations contained in the complaint and affirmatively pleaded the contributory negligence of the plaintiff. A trial was had before the court sitting with a jury. The jury returned a verdict in favor of the plaintiff and from a judgment entered thereon the defendant has appealed under section 953a of the Code of Civil Procedure.

The first point presented by the defendant is the contention that the plaintiff was guilty of contributory negligence as a matter of law. The accident occurred October 4, 1924, at about half past 4 P. M. in Hyde Street, immediately north of the north line of Fulton Street, in San Francisco. Hyde Street is 46 feet wide and Fulton Street is 100 feet wide from curb to curb. The plaintiff was in the act of crossing from the east side of Hyde Street to the west side, traversing that portion of the street which pedestrians ordinarily traverse in going up the north side of Fulton Street. Before entering the street and before he left the sidewalk the plaintiff testified that he looked to the north and to the south, but that he did not see the machine driven by the defendant; that immediately after looking to the south he stepped into the street; that as he was in the act of stepping from the curb into the street he looked to the south and into the area embraced by the four corners of

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the intersection and that he did not see defendant’s automobile ; that he took but two or three steps from the curb when he was struck by the automobile approaching him on his left side. The defendant argues that when to look is to see then it is not sufficient that a party testifies that he did not see an automobile which was within the territory which the witness testifies he looked into. The vice in this argument is the assumption that the automobile was in the territory in question. That was a disputed fact in the case. If at the time he looked the defendant’s car was on the driver’s left-hand side of the median line of Fulton Street and had not entered the intersection of Hyde and Fulton, and if the plaintiff had seen the car in that position, he was entitled to assume that the defendant would not unlawfully proceed down that side of Fulton Street and unlawfully run into him; and he was not bound to make a mental note thereof and remain standing until he could ascertain what movements the defendant was about to execute. True it is that the defendant offered testimony to the effect that her car was within the intersection. However, the record before us does not disclose that the automobile necessarily was in the zone concerning which the plaintiff addressed his testimony. On the other hand, there is evidence in the record produced by the plaintiff to the effect that the automobile was on the driver’s left-hand side of the median line of Fulton Street where that line crosses the median line of Hyde Street, that it was proceeding at a speed of 20 to 25 miles an hour until it turned north into Hyde Street on the easterly side. Just how far the defendant’s car was from the median line of Fulton Street when it turned into Hyde Street does not appear in the printed record. However, the record shows that the witnesses were examined and cross-examined thereon and illustrated their testimony by marking diagrams which are not before us. The plaintiff illustrated how he moved at the time immediately preceding the accident. Counsel held a timepiece. The illustration took four seconds. At 20 to 25 miles per hour the defendant’s car would travel, in that period, approximately 140 feet. It is clear there was a wide field for the jury to exercise its discretion in determining where the car was when plaintiff looked