Peatfield v. Pacific Gas Radiator Co.

STEPHENS, J.,

pro

tem.

A jury returned a verdict in this ease in the sum of $8,000 against defendants and in favor of plaintiff as damages resulting from an automobile accident, and defendants appeal upon a bill of exceptions. The salient facts are as follows:

The plaintiff, a woman nurse, left her home at about 6 o’clock P. M. on October 18, 1920, to walk to a branch post' office in the city of Los Angeles. She wore a dark coat which left 20 inches of her white uniform showing below. It was raining, and she carried open a dark umbrella. At the southeast corner of the intersection of Moneta Avenue and Seventy-third Street she discovered water running in Seventy-third Street, flush with the curb, and after looking up and down Moneta Avenue and observing no vehicles approaching, walked on a board into Moneta Avenue, crossed Seventy-third and proceeded northerly along Moneta Avenue to the right of the street-car tracks, expecting to cross back out of the street at the first opportunity. When about 100 feet from Florence Avenue, the next cross street, she was struck from the rear by an automobile and seriously injured. The automobile was being driven by the defendant Ostrowsky for the defendant Pacific Gas Radiator Company. The left headlight was burning and a dash light also. The right headlight was broken and had not functioned for some three days previously. The automobile was moving, according to the driver, at a speed of 10 or 12 miles per hour, and after hitting defendant went at least the length of the car before stopping, although there is some evidence that it went farther. The driver saw plaintiff but a very short distance before hitting her, and could not stop in time to prevent the accident. The car did not have skid chains on. There were street lights at the Moneta and Florence Avenue intersection. Some store lights also gave light in the street. The windshield on the ear was wet with rain

[627]

and the driver testified that he was looking ahead and aronnd it.

Appellants contend in their opening brief that these facts show no negligence chargeable to defendants, but withdraw this claim in their reply brief. Both upon the statement and this concession we hold that there was evidence to support the jury’s determination of negligence. Appellants claim in their brief “that respondent was guilty of contributory negligence as a matter of law, and that the jury should have been instructed to return a verdict for appellants.” They concede that where there is a substantial conflict in the evidence this court will not disturb the verdict, and cite