Whitmore v. Smith

NOURSE, J.

Plaintiff commenced this action for damages for injuries suffered when struck by defendant’s automobile while she was crossing a public street in the city of Long Beach. The cause was tried before the court without a jury with the result of a judgment in favor of plaintiff in the sum of $1,800. From this judgment the

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defendant appeals upon a record prepared under the provisions of section 953a of the Code of Civil Procedure.

'The only grounds urged on the appeal from the judgment are that the evidence was insufficient to support the finding of defendant’s negligence and that it is also insufficient to support the finding that the plaintiff was herself not guilty of contributory negligence. The evidence is that the plaintiff, having just alighted from a public bus at the corner of Atlantic Avenue and Seventeenth Street, passed around the front of the bus to cross Atlantic Avenue when without warning she was struck by the defendant’s automobile and thrown back in front of the bus, suffering the injuries which are the basis of the complaint.

Concerning the finding of defendant’s negligence the evidence is in wide conflict, both as to the rate of speed and as to the proximity to the side of the bus in which defendant was attempting to pass. On the part of the plaintiff it was shown that the defendant was attempting to pass this bus “as close as it could come without hitting it” and that he was traveling at a high rate of speed in violation of the statutory regulation at that point. On the part of defendant the testimony was that he was attempting to pass the bus at a distance of four or five feet, that he was not traveling more than twelve or fifteen miles an hour, and that the plaintiff ran into his machine. If the defendant’s testimony were true it is apparent that the accident as detailed by all the witnesses could not have happened as it did. The plaintiff was thrown directly in front of the standing bus, her head toward the curb and her feet toward the path of defendant’s machine. If the defendant had been traveling at twelve or fifteen miles an hour on a path five feet west of the standing bus he could not have thrown the plaintiff to the place where she was picked up. And, again, if he had been traveling in that manner he would have had ample opportunity to have avoided the collision. The court believed the testimony offered by the plaintiff and that settles the question of defendant’s negligence so far as this appeal is concerned.