Conness v. McCarty

SEAWELL, J.

Plaintiffs appeal from a judgment for defendant in an action for wrongful death. Plaintiffs are the widow and infant daughter of William S. Conness, Jr., who died of injuries received when he was struck by defendant’s automobile while walking on a public road in the county of Los Angeles known as the Culver Boulevard on the morning of November 1, 1928, at about 12:10 A. M. The case is before this court upon transfer from the District Court of Appeal. We granted defendant's petition for transfer to this court after decision by the appellate court reversing the judgment in his favor, for the reason that we were unable to agree with the conclusion that the decedent, as a matter of law, was free from contributory negligence, and therefore the lower court erred in instructing the jury fully on the doctrine of contributory negligence. In our opinion the jury was plainly authorized, upon the evidence before it, to find decedent guilty of contributory negligence.

The facts of the tragic accident are as follows: The decedent, aged twenty-three years, in company with one Bradley and two young women, was returning from the beach towns of Ocean Park and Venice to Los Angeles, via the Culver Boulevard, in a Chrysler roadster with a rumble seat. Bradley was employed by decedent’s mother as her chauffeur. At about 7:30 o’clock the two men had observed the young women, with whom they were unacquainted, waiting to board a street-car bound for the

[417]

beaches, and had invited them to drive. The night was Hallowe’en, October 31, 1928. After a pleasure tour of the beaches they were returning to Los Angeles about midnight, Bradley driving with one of the young women in the front seat, and decedent and the other young woman occupying the rumble seat. A short distance west of Culver City, Conness requested Bradley to stop the car, as he wished to put on his overcoat. Bradley stopped and parked his automobile on the south side of the road, his right side, headed easterly, with its headlights burning. He testified that the left wheels of his automobile might have been on the improved portion of the road. Both Conness and his young woman companion climbed out of the rumble seat. Conness said to Bradley that they would run up the road a way “to warm up”. They started running up the road, hand in hand, in the same direction in which the Chrysler roadster was facing, on their right or the south side of the road. When they had gone a distance of between fifty and seventy-five feet from their automobile they turned to walk back in a westerly direction. After turning back they were struck from the rear by defendant, who was traveling westerly at a speed estimated by him to be thirty-five miles an hour, on the north or his right side of the road. Defendant’s brother-in-law was in the front seat with him. Defendant testified that he did not see Conness and the young woman until just as he hit them. He immediately brought his automobile, which was a Lincoln sedan, to a stop within a short distance. After the impact Conness and his companion were lying unconscious, at an angle across the road, at the extreme north edge, or with their heads and shoulders beyond the edge of the gravel-macadam pavement. The right headlight of the defendant’s car was bent back against the radiator and the right front fender was dented. The skid marks upon the road showed that defendant had swerved somewhat to his left as he put on his brakes to avoid hitting the couple. Conness died shortly after reaching the hospital and the young-woman received serious injuries.