Blackwell v. Renwick

JAMES, J.

Plaintiff sued to recover damages for injuries alleged to have been suffered through the negligence of defendant. The cause was tried before the court sitting without a jury, and the findings and judgment were in favor of plaintiff. The alleged negligent acts of defendant consisted in so driving an automobile on a public street at the outskirts of the city of Los Angeles that it collided with plaintiff, who was a pedestrian upon the street. At the outset it may be observed that there was a conflict in the evidence as to the manner in which the accident occurred. Plaintiff testified that at about 5:30 o ’clock p. m. on the tenth day of November, 1910, he and his wife alighted from a car which was traveling southerly on Santa Fe Avenue and at the junction of the latter street with Vernon Avenue; that Vernon and Santa Fe avenues intersect at that point at right angles; that plaintiff’s home was located a short distance southerly from Vernon Avenue on Santa Fe Avenue, toward which place he and his wife were then traveling; that Santa Fe Avenue at that location was in the condition of an ordinary county road, having a very rough surface and without cement or other sidewalks on either side of it; that according to their custom plaintiff and his wife started to walk southerly in the direction of their home down Santa Fe Avenue and a little to the right of the center of it, the wife walking between the rails of a ear track laid on the right side of said 'avenue and the husband at the left of the inner rail of said track; that after having progressed a distance of about one hundred feet an automobile suddenly came upon them from the rear without warning of any kind, either by the sounding of a horn or other alarm, and that before plaintiff could move to a place of safety he was run over by the machine and seriously injured. The plaintiff further testified that up to the moment that the automobile came upon him he had heard no noise and had not seen the approaching vehicle. He further testified that on the side of the street where he and .his wife were

[133]

walking there was only a distance of nine or ten feet from that side of the street to the west rail of the car track along which they were walking, and that the distance from the east rail of said track to the opposite or easterly side of the street was about thirty-four feet. He denied that, as asserted by defendant, there was a path answering for a sidewalk on the west side of the street along which pedestrians customarily traveled; on the contrary, his testimony was that because of the lack of a sidewalk pedestrians habitually used the street in traveling to and from points along its course. The defendant in his testimony gave his version of the events leading up to the accident. He testified that he was traveling along Santa Fe Avenue in the same direction in which plaintiff and his wife were moving, and that up to the time he reached the intersection of Santa Fe Avenue with Vernon Avenue he was traveling at the left of the car-track running down Santa Fe Avenue, and that when he reached Vernon Avenue he turned toward the right and proceeded southerly with the westerly rail of the car track, upon which, plaintiff and his wife were walking, between the wheels of his automobile. He admitted that he observed plaintiff and1 his wife in ample time to have stopped the automobile, but his statement was that he was traveling at a moderate rate of speed, not exceeding fifteen miles per hour, and that when he was about a hundred feet away from plaintiff, both plaintiff and his wife turned and faced the automobile and there stood; that he, defendant, observing that there was ample room to drive his automobile to the right of plaintiff and his wife and between them and the westerly line of the street, started as he approached them to guide his machine in that manner around them, when plaintiff’s wife suddenly jumped toward the westerly side of the street; that in order to avoid injuring her he turned his machine to the left, and that he would have escaped injuring either of the pedestrians had not the plaintiff suddenly moved in front of the machine, and was then struck by it. He testified that his machine was equipped with gas and oil lights, all of which were burning at the time, and that he did not give alarm by blowing the horn because he noticed that when he was about a hundred feet away from plaintiff and his wife they had turned and observed the automobile. The findings of the court, as has been noted,