Strange v. Los Angeles Examiner

[420]

GRAY, J.,

pro

tem.

Appellant, while walking from the southeast to the northeast corner of Sixth Street and Towne Avenue, in the city of Los Angeles, was struck by an auto-truck owned by the corporate respondent, and operated by the other respondents as its employees. For the resultant injuries, due to respondents’ alleged negligence, he seeks in this action to recover damages. The court, at the close of appellant’s case, sustained respondents’ motion for a non-suit and appellant appeals from the judgment thereafter entered. ' In their briefs both parties agree that the judgment can be sustained only if appellant’s own testimony establishes, as a matter of law, his contributory negligence in failing to use ordinary care for his own protection and safety. As aptly suggested by respondents, appellant’s own testimony contains the sole description of his acts and conduct immediately before and at the time of the accident. But such acts and conduct must be measured in the light of the attendant circumstances described in the other testimony.

Appellant testified that he was on his way to church when struck; that the accident happened on March 6th at 7:15 in the evening; that his eyesight was good; that he knew that the intersection was a dangerous crossing; that, when a few steps from the curb, he looked to the east, to the west and in front, but did not see any approaching automobile and so proceeded to cross; that as he reached the middle of the street he was struck by something he never saw and became unconscious for forty-six hours; that he never heard any warning; that immediately before he was struck he was thinking of the church meeting he was about to attend and he crossed his arms over his breast and gave utterance to some religious sentiment. He also testified both that when in the middle of the street he looked to the west, and that he did not remember so doing. A friend testified that appellant’s hearing was bad. An eye-witness of the accident testified the lights on the truck were dim; that the truck was traveling at a rate of speed between thirty and thirty-five miles per hour when appellant was hit; that appellant came in contact with the left front fender; that his body was carried on the truck for a distance of between thirty and thirty-five feet and then dropped off, and that the truck continued about ten to twelve feet farther.