Mandorf v. Penniman

LANGDON, P. J.

This is an appeal by the defendant from a judgment against him for one thousand dollars in an action brought to recover damages for personal injuries alleged to have been suffered by the plaintiff Fannie Mardorf by reason of the negligence of the defendant in operating an automobile upon the public highway in the city of Burlingame, California. The plaintiffs are husband and wife. The answer denied negligence on the part of the defendant and alleged that the injuries were caused by the negligence of the plaintiff Fannie Mardorf.

The case was submitted to the court without a jury, and it was found that at the time and place of the accident, the

[698]

defendant was operating his automobile “in a careless, negligent, wanton and reckless manner and at an unlawful rate of speed and without sounding a warning signal and with very dim lights and with utter disregard of - the safety of the plaintiff Fannie Mardorf; that said automobile of defendants . . . was proximately and directly caused to collide with and strike the plaintiff ... by and through and solely because of the carelessness, wantonness, negligence and recklessness of the defendant ... in the operation of said automobile ; that none of the injuries or damages that the plaintiff Fannie Mardorf sustained were occasioned solely or at all . . . through the negligence of the plaintiff.”

It is the appellant’s contention that these findings are not sustained by the evidence. At about 6 o’clock in the evening on October 28, 1922, the defendant was operating an automobile through the city of Burlingame in a southerly direction along the right or westerly side of El Camino Beal, the state highway, and was approaching the intersection of said highway with Broadway, at a speed variously estimated at “less than twenty miles an hour” and twenty-five miles an hour or more. It was already dark and the highway was crowded with automobiles and pedestrians and a number of persons who had just come in on a train. Plaintiff attempted to cross the highway from the southeast to the northwest corner, at the usual crossing for pedestrians and within the lines marking out the safety zone. When she had reached a point close to the curbing on the northwesterly comer (estimated at three to eight feet therefrom) she was struck by the right front wheel of defendant’s automobile and thrown partly upon the sidewalk. Her ankle and nose were broken, her thumb was severely injured, ribs were fractured and she sustained various bruises and minor injuries, confining her to her bed and to a wheeled chair for several months.