Katz v. T. I. Butler Co.

KOFORD, P. J.

This is an appeal by the defendant from a judgment in favor of plaintiff for personal injuries. The trial was by jury. The evidence shows that plaintiff was struck and injured by a truck driven by defendant’s driver while crossing Mission Street at the intersection of Twelfth Street, in the city of San Francisco. The evidence would support a finding that the accident happened a few minutes after or perhaps a few minutes before one-half hour after sunset. The truck did not - have its headlights burning and

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entered Mission Street driving southerly on Twelfth Street and turned westerly into Mission Street. The plaintiff was struck by the truck after he had walked but a few feet out from the sidewalk into the street. At the trial witnesses testified to various degrees of darkness and visibility. On the side of plaintiff such expressions as the following were used: About dusk, getting dark, hazy and dark, inclined toward darkness and foggy. One witness testified it was with difficulty that he could see to pick up plaintiff’s silver scattered on the pavement.

The evidence, shown in the record is sufficient to support the finding of the jury that the defendant’s truck driver was negligent in operating the truck without lights at the time and place and in the manner testified to by the witnesses.

Plaintiff and another witness testified that he looked to his left before starting to cross the street, but saw no danger. Appellant contends that the plaintiff was guilty of contributory negligence as a matter of law. It contends that if plaintiff looked and "did not see, he looked negligently, for the truck was not invisible and was seen by another witness. On the other hand, if the plaintiff did not look before leaving the sidewalk to cross the pavement, it is claimed he was negligent for not looking. Appellant has cited numerous authorities where this principle has been applied. The facts in the eases referred to, however, are either quite different from those in the ease at bar or are cases where the jury or trial court determined the question as a decision of fact. It is certainly not true that this principle can be applied to every case of a pedestrian struck by a vehicle while attempting to cross the street. The test is not whether the plaintiff did all that was possible for him" to do, such as seeing everything that was possible to see that could be a source of danger to him, but whether he acted with ordinary care and prudence under all the facts and circumstances. A pedestrian acting with ordinary prudence at a time when lights are reasonably necessary or required by law may look with due care and still fail to see an unlighted truck or fail to apprehend that it is a source of danger to him. Especially is this so where the truck makes a turn just before coming into the street and bearing upon the pedestrian. At least we cannot say that this is