EDMONDS, J., Dissenting. Although I agree that the appellants were guilty of negligence as a matter of law, I fail to find any causal connection between their negligence and the injuries sustained by the respondent. Ordinarily, the question of proximate cause, like those of negligence and contributory negligence, is one of fact to be determined by the jury. But where only one conclusion may reasonably be drawn from the facts, the question becomes one of law (Schwartz v. California Gas & Elec. Co., 163 Cal. 398 [125 Pac. 1044]; Traylen v. Citraro, 112 Cal. App. 172 [297 Pac. 649]; Gallichotte v. California etc. Assn., 4 Cal. App. (2d) 503 [41 P. (2d) 349]; Kostouros v. O’Connell, 39 Cal. App. (2d) 618 [103 P. (2d) 1028]; Restatement, Torts [American Law Institute], sec. 434).
According to uncontroverted evidence, the truck was [146]parked in such a manner as to prevent automobiles east bound on Market Street from passing between the curb and the safety zone. This zone is 64 feet in length and is protected by raised buttons. The tracks of the Municipal Railway lie four feet north of and parallel with the safety zone, and about the same distance farther north are the tracks of the Market Street Railway Company.
Immediately prior to the accident, the respondent had alighted from a bus and had stepped into the east end of the safety zone near the pedestrian crosswalk. At the time Manecis had reached a point variously estimated as from 20 to 100 feet away from the west end of the safety zone, he observed the truck blocking the street between it and the curb. Following two or three other ears ahead of him, he swerved to his left and proceeded for several feet along the second track until he struck respondent, who was in the crosswalk, causing severe injuries. During all of this time, his automobile was traveling at a speed of about 10 to 15 miles per hour.
It is well settled that the violation of a statute or municipal ordinance constitutes negligence per se, provided the plaintiff is one of a class of persons whom the statute was intended to protect (Baillargeon v. Myers, 180 Cal. 504 [182 Pac. 37]; Rabe v. Western Union Tel. Co., 198 Cal. 290 [244 Pac. 1077]; Benjamin v. Noonan, 207 Cal. 279 [277 Pac. 1045]; 19 Cal. Jur. 632; Prosser on Torts, p. 266), unless such violation was jutifiable or excusable under the circumstances (Mora v. Favilla, 186 Cal. 199 [199 Pac. 17]; Parker v. Auschwitz, 7 Cal. App. (2d) 693 [47 P. (2d) 341].) Market Street is a thoroughfare with four street car tracks, and the traffic thereon is frequently congested. It was undoubtedly the design of the city ordinance to keep the traffic lane between the curb and the safety zone open and thereby prevent the hazard to pedestrians seeking to board, or leave street cars which would be caused by vehicles traveling on the street car tracks. At the time of the appellants’ illegal parking, the respondent had stepped into the safety zone. She was therefore among those whom the statute was intended to protect.
But in order to be a legal cause of another’s injury, it is not sufficient that the harm would not have occurred had the actor not been negligent. An original act of negligence is not a proximate cause of an injury when the damage di[147]rectly results from the intervening act of a third person which was one not to be reasonably anticipated by the defendant as likely to result from his own act. If, with the effects of the former negligence consciously before him, the intervening actor is guilty of a new negligent act which may not be said to flow with logical sequence from the original negligent act, the chain of causation is broken and the original act of negligence is not the proximate cause of the accident. These are fundamental and accepted principles in the law of torts (Vizelich v. Southern Pacific Co., 126 Cal. 587 [59 Pac. 129]; Trice v. Southern Pacific Co., 174 Cal. 89 [161 Pac. 1144]; Schwartz v. California Gas & Elec. Co., supra; Katz v. Helbing, 205 Cal. 629 [271 Pac. 1062, 62 A. L. R. 825]; Hauser v. Pacific Gas & Elec. Co., 133 Cal. App. 222 [23 P. (2d) 1068]; McMillan v. Thompson, 140 Cal. App. 437 [35 P. (2d) 419]; Camp v. Peel, 33 Cal. App. (2d) 612 [92 P. (2d) 428].)
Applying these principles to the facts of the present case, as I read the record, it is clear that the sole legal cause of the respondent’s injuries was the independent act of Maneeis in operating his car in such a careless manner as to violate her rights as a pedestrian by running her down in the marked crosswalk. Admitting that the act of the appellants in obstructing the passage of traffic between the safety zone and the curb forced Maneeis to take a path of travel made illegal by city ordinance, there is no evidence that the parked truck caused him to operate his automobile carelessly. On observing the truck, he made his first turn to the left at least 20 feet from the west end of the safety zone. He then proceeded along the municipal tracks for about 25 feet, at which point he swerved again to the left and drove along the tracks of the Market Street Railway Company to the point in the pedestrian lane where the respondent was struck. He traveled for a distance of at least 84 feet from the point of his original turn to the place of the accident, and during this course of travel his speed was not more than 10 to 15 miles per hour. The evidence clearly indicates that after he had turned left to avoid the parked truck, his subsequent movements were governed by his own free choice without any possible reference to the truck and unaffected by any act of the appellants. There is no claim that the truck caused Maneeis to lose control over his automobile and the evidence is entirely to the contrary. After he turned to the left, there [148]was nothing about the truck which could have affected his action in directing the course or speed of the vehicle he was driving.
Under these circumstances, the act of Manecis in striking respondent was a new act of negligence, wholly unrelated to the negligence of the appellants. There is no basis for holding that Foley should reasonably have anticipated that a car, forced to operate to the left of the safety zone but admittedly within the control of the driver, would be so negligently driven as to strike a pedestrian standing in the marked crosswalk some 86 feet away. The unlawful occupation of the street by the appellants’ truck was, at most, a condition and not a contributing cause of the accident (McMillan v. Thompson, supra).
The present case cannot be likened to those wherein the facts show that the vehicle operated by the defendant came to a sudden stop, forcing other vehicles approaching from the rear to swerve out suddenly, and a pedestrian or automobile was struck by another automobile whose driver was avoiding, or attempting to avoid, the defendant’s car (Gett v. Pacific Gas & Elec. Co., 192 Cal. 621 [221 Pac. 376]; Mason v. Crawford, 17 Cal. App. (2d) 529 [62 P. (2d) 420].) Manecis collided with the respondent, not in swerving to avoid hitting the appellants’ truck, but only after he had proceeded some 86 feet farther in full control of the speed and direction of the vehicle he was operating.
The case is likewise distinguishable from decisions in which the negligent act of the defendant was a concurring factor and actively participated in the accident. For example, in Lacy v. Pacific Gas & Elec. Co., 220 Cal. 97 [29 P. (2d) 781], the defendant negligently left an electric light pole in a farm roadway. The plaintiff was about to enter an automobile parked in front of the pole. As the driver of the automobile was endeavoring to start the motor, the car dashed violently backward and hurled the pole in the air in such a manner as to strike the plaintiff on the leg. The defendant’s act was held to have been the proximate cause of plaintiff’s injuries. But in the present case, at the time the accident occurred the appellants’ act had ceased to have any effect upon the movements of Manecis and it did not actively concur in producing the injuries sustained by the pedestrian.
The respondent relies upon McKay v. Hedger, 139 Cal. [149]App. 266 [34 P. (2d) 221], and Mecchi v. Lyon Van & Storage Co., 38 Cal. App. (2d) 674 [102 P. (2d) 422, 104 P. (2d) 26]. In the McKay case, the defendants double parked their ice truck in such a manner as to obstruct the view of other drivers lawfully traveling on the street. The plaintiff, a minor child, ran from behind the truck into the path of an oncoming automobile and was injured. In the Mecchi case, the defendant illegally parked its moving van at an angle to the curb opposite two cars parked at the curb across the street, thus reducing the space for passing cars. In passing through this space, a car hit the plaintiff, a minor. In both cases, the question whether the defendant’s illegal parking was a proximate cause of the accident was held to be a question for the jury. However, in each of them, the parked automobile obscured the vision of the oncoming drivers and the injured pedestrians, and the accident occurred while the passing cars were in the very act of proceeding around the standing vehicle. The facts of the present case are entirely different and compel a contrary result.
Concerning the holding that the former decision (Fennessey v. Pacific Gas & Elec. Co., 10 Cal. (2d) 538 [76 P. (2d) 104]), has now become the law of the case, that appeal was taken, in part, from an order granting the respondent a new trial upon the ground that certain instructions given by the trial court upon the issue of proximate cause were erroneous. The propriety of the challenged instructions was the sole question decided by the court upon that appeal; whether or not the evidence was sufficient as a matter of law to establish the act of the appellants as a proximate cause of the accident was not decided by the court and, in my opinion, the doctrine of the law of the ease does not apply to the issues now before the court.
For these reasons, I believe that the judgment should be reversed.
Curtis, J., concurred.
. Appellants’ petition for a rehearing was denied April 30, 1942. Curtis, J., and Edmonds, J., voted for a rehearing.