Pisani v. Martini

KNIGHT, J.

While walking along a highway in San Mateo County known as the Half Moon Bay highway, about 6 o’clock on the night of December 13, 1931, the plaintiff

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Pisani was struck and injured by an automobile driven by the defendant Angelo Martini, as a result of which Pisani brought this action for damages, and upon trial before a jury was awarded a verdict for $2,500. Prom the judgment entered on said verdict defendants have appealed.

At the time of the impact Pisani was walking along the extreme outer right edge of the highway, off the paved portion. He had just crossed over from the left side in order to avoid two automobiles, one following the other, which were approaching him in the opposite direction and on the same side of the highway. One of the automobiles was being driven by a man named Torres and was towing the other. After crossing over to the right side of the highway, Pisani traveled a distance of approximately fifty feet when Martini, who was following the other two automobiles, overtook said automobiles and attempted to pass them on the left side and in doing so struck Pisani.

Section 150% of the California Vehicle Act provides that “It shall be unlawful for any pedestrian to walk along and upon any highway outside of a business or residence district otherwise than close to his left-hand edge of the highway.” And subdivisions (a) and (b) of section 28% of said act define a business and a residential district, which, according to sections 115 and 116 of said act are required to be signposted.

In the present case appellants proposed the following instruction, which the trial court refused to give: “I instruct you that the California Vehicle Act provides as follows: ‘See. 150%. It shall be unlawful for any pedestrian to walk along and upon any highway outside of a business or residence district otherwise than close to his left-hand edge of the highway. ’ If you find

from the evidence

that the plaintiff violated this provision of the statute, then I instruct you that he was guilty of negligence as a matter of law, and if you further find that such negligence on his part proximately caused or contributed to this accident in the slightest degree, then your verdict must be in favor of the defendants.” (Italics ours.) Another instruction to the same general effect, but omitting the provisions of said section 150%, was also proposed by appellants and by the court refused. As will be noted, the instruction proposed stated in substance and effect that if the jury found