Ellis v. Sanberg

JAMES, J.

A judgment in this case was entered in favor of the plaintiff in the sum of four hundred dollars as damages which the court found plaintiff had suffered by reason of personal injuries caused by the negligence of the defendant. The defendant appeals from the judgment and from an order denying his motion for a new trial. In the complaint of plaintiff it was alleged that, while plaintiff was crossing a public street in the city of Los Angeles, the defendant came down the street operating an automobile and that said automobile was traveling at a dangerous rate of speed and in excess of the speed permitted by law, and that defendant “so carelessly and negligently operated and drove his said automobile, as to run the same into the person of plaintiff, running him down, and said automobile struck plaintiff with such force and violence that plaintiff was violently thrown to the pavement.” Under findings made by the court the facts were determined to be as alleged by the plaintiff. Defendant in his answer denied that any negligent act had been committed on his part and further alleged that the injuries to plaintiff were caused by the contributory negligence of the latter. It is here contended that the evidence was insufficient to justify the court in making findings in favor of the plaintiff and that the defense of contributory negligence should have been sustained. The ease on the evidence was peculiarly one for the judgment of the trial court and was not a case where the evidence showed without conflict a lack of negligence on the part of the defendant. The plaintiff

[508]

attempted to cross the street about midway between the corners of the block. He testified that he saw the machine of the defendant when it was thirty or forty feet away; that he did not know upon which side the machine was going to pass and, becoming confused, in order to save himself he attempted to grasp the machine in front and that as he did so the machine came to a stop, not before, however, his leg had been damaged by contact with it. Another witness testified to having observed the accident; he testified that he was in a machine following the machine of defendant just before the accident, and that the machine of the defendant was traveling in the neighborhood of forty miles an hour; that as the defendant apparently saw the plaintiff crossing in front of him he put on his brakes and “skidded his machine for fully fifty feet, the fire flying from under the tires, trying to stop the machine.”