Clark v. Bowers

STURTEVANT, J.

The plaintiff was injured by being struck by an automobile which was at the time being driven by one of the defendants but which was owned by the other defendant. The defendants answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff and fixed his damages in the sum of $1,000. The plaintiff made a motion for a new trial and thereafter the trial court granted the motion on the ground that the evidence was insufficient to sustain the verdict. From that order the defendants have appealed and have brought up typewritten transcripts.

The accident occurred in the city of Gilroy, Monterey Street runs north and south and is a part of the highway leading from San Francisco to Los Angeles. Fifth Street runs east and west. Its eastern end terminates in Monterey Street. Fifth Street is thirty feet wide and Monterey Street is sixty feet wide. A button indicates the center of the intersection. The sidewalks of Fifth Street if pro

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longed across Monterey Street are indicated by lines marked on the pavement to indicate the crossings for pedestrians. On the night of December 26, 1929, at about 7:15 P. M., the plaintiff was in the act of crossing Monterey Street and was walking toward the east. When he had passed the button the automobile came out of Fifth Street, started to. turn to the left into Monterey Street, and, as it was doing so, it hit the plaintiff. During the trial the plaintiff took the stand as a witness in his own behalf. Among other things, he testified: “I had a little bundle in my hand (a little purchase that I had made) and I stepped off the curb, started to go across, and looked north and south as soon as I could see past the parked cars there and see that the pedestrian’s way was clear. I looked frequently as I was passing along to see that the road was clear. I looked north and south and saw no one within approaching distance before I stepped into the pedestrian lane. I looked both ways north and south. As I started to go across on the pedestrian’s crossing I slowed up a bit so that I could look past the parked cars both north and south. I didn’t stop entirely. I simply slowed up and I looked north and south. There was no obstruction that interfered with my seeing to the south. Nor to the west. The west was behind me. I couldn’t see out of the back of my head you know. I didn’t look behind me.” The plaintiff also called Raymond Taylor, one of the intimate friends of the plaintiff’s son. That witness stood on the sidewalk on the west side of Monterey Street talking to some acquaintance but with his eyes resting on the plaintiff as the plaintiff attempted to cross Monterey Street. Among other things, he testified: “I saw the whole accident. Dr. Clark was about six feet past the button in the safety zone, where they turn at the intersection on a line with that button, six feet past it east, on the east side of Monterey street. When this car came around the corner it struck him on the right side, kinda from Dr. Clark’s back. It must have struck him around the thigh from what I could see. When he got to the button in the center of the street he looked north and south to see if there were any cars coming. I noticed that. That was when he got there to the button, right in that little section where it is painted safety zone. ... He stopped there right by the button and looked to see if there was any ear coming south