Filson v. Balkins

PRESTON, J.

Action for personal injuries. Plaintiff had judgment for 11500 and defendant has appealed.

On July 24, 1923, plaintiff was struck by an automobile driven by defendant and was quite seriously injured.

[211]

The place of the accident was three or four feet west of the center line of the highway running north and south and at a point two miles south of the town of Newhall in Los Angeles County. The traveled part of the roadway in this region was twenty-one feet. The automobile was coming from the south, traveling north. The proper side of the highway, according to the law of the road, was the east side thereof, but plaintiff was struck on the west side thereof, the machine being on that side.

Evidence was received that the road was clear of traffic; that defendant was traveling some thirty miles per hour and that no warning of any kind was given; hence the verdict of the jury that defendant was negligent cannot be disturbed.

In fact, the only question made is that plaintiff, as a matter of law, was guilty of contributory negligence, but we confess a total inability to see any merit in this contention under the plaintiff’s evidence.

For some 500 or 600 feet south of the point of the accident, the road, though on an incline, was without any curve. On the day of the accident plaintiff was acting as the foreman of a crew of men repairing a pipe-line of the Midway Gas Company, which traversed the west line of said highway. Near the point of the accident these employees were tunneling under the highway from the west side thereof a distance of six feet to effect a pipe connection. Warnings that men were at work on the highway were posted both north and south of this point at a distance of about one-half mile therefrom. Defendant admits that he saw the men at work when he approached within about 150 feet of them. Just prior to the accident plaintiff had been requested to go to the east side of the highway to secure two flags to be used in directing traffic away from this excavation. After securing the flags, he approached the highway and after waiting for two vehicles to pass, gazed to the north and to the south. He saw no traffic except defendant’s car, which he judged to be some 400 or 500 feet distant. Believing that he had plenty of time to recross the highway in safety, he proceeded without further outlook at a moderate gait and at an angle of about forty-five degrees. Upon reaching the center of the highway, he gazed to the north, the proper place to expect traffic. Seeing none, he proceeded and when he had reached a point three or four feet beyond the center, de