Davis v. Renton

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover a judgment for damages

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arising out of a collision with an automobile. The defendant answered and a trial was had in the trial court before the court sitting with a jury. The jury returned a verdict in favor of the plaintiff for the sum of five- thousand dollars; the defendant made a motion for a new trial; the motion was denied and she has appealed from the judgment based on the verdict under section 953a of the Code of Civil Procedure.

The accident occurred in Oakland on the twenty-ninth day of September, 1927. The plaintiff was in the act of walking from the southwest corner of Fifty-first Street and Telegraph Avenue easterly across Telegraph Avenue. The defendant approached from Berkeley driving south on the west side of Telegraph Avenue. The collision occurred near the westerly rail of the double street railroad track. Just before she left the curb the plaintiff looked north on Telegraph Avenue for approaching traffic. She saw two ears and she waited until they passed. She testified that she then stepped into the street and when she was midway between the curb and the rail she looked again and saw two automobiles approaching from the north. She estimated the distance at 150 feet. She continued forward to the rail and at that time looked again and saw the defendant’s car about fifteen feet to 'the plaintiff’s left. She saw the car swerve as though it were going to pass behind her and she was then in the act of advancing when she was hit. Neither on direct examination nor cross-examination did she claim to have looked north from the time she stood on the sidewalk until the accident happened. The defendant calls this evidence to our attention and asserts that the plaintiff was guilty of contributory negligence. In this behalf she argues that it was the duty of the plaintiff to be continually looking in the direction from which traffic might be approaching. The plaintiff was bound to exercise ordinary care. Ordinary care has reference to time, place and circumstances. There is nothing in the record before us showing that this plaintiff should, at the time and place of this particular accident, have been looking continually to the north as she entered Telegraph Avenue.

The defendant makes the further contention that the verdict of the jury fixing the damages in the sum of five thousand dollars was excessive. If a jury is corrupt its