Collonan v. Rosellini

TYLER, P. J. —Action for damages for personal injuries arising out of an automobile accident. Plaintiff alleged that while she was walking southerly across Market Street in a pedestrian crosswalk at Diamond Street in San Francisco she was struck and injured by an automobile east bound on said street. She alleged that the automobile was owned by the defendants Rosellini and Gialdini doing business as the New Castro Market, and that it was negligently driven in the [35]course of their business by their employee, defendant Sehloffel. Plaintiff’s injuries consisted of a fractured skull, concussion of the brain, cuts on her head and arm, and bruises on various parts of her body. General damages were sought in the sum of $50,000 and special damages were prayed for in the sum of $1245. A joint answer was tiled by the three defendants, which consisted of a general denial to which was added the defense of contributory negligence. Trial was had and a motion for a nonsuit was interposed at the conclusion of plaintiff's case, which motion was denied. The jury awarded plaintiff the sum of $5,000 against the three defendants. Motion for a new trial was made and denied. This is an appeal from the judgment. Various grounds are relied upon for a reversal. It is claimed the evidence fails to establish that defendants were negligent; that it establishes plaintiff was guilty of contributory negligence as a matter of law; that the jury was misdirected to the prejudice of defendants, and that the damages are excessive.

There was evidence to show that the accident occurred in the vicinity of the intersection of Market and Diamond Streets in San Francisco. At this point Market Street is 75 feet wide from curb to curb, with abutting sidewalks 10 feet wide. The center of the street is marked with the usual white line. Generally speaking Market Street in this vicinity runs east and west, and Diamond Street north and south. Between 5:30 P. M. and 6 P. M. of November 3, 1934, plaintiff left her residence to do some shopping. It was dark and there was a drizzling rain falling. She walked southerly on the west side of Diamond Street until she reached the north side of Market and then crossed Diamond Street easterly to the northeast corner of Market and Diamond. While crossing from the north to the south side of Market Street she was struck by the automobile above mentioned, which was east bound, after she had passed the center line of the street. There was a conflict in the testimony as to whether or not plaintiff was walking in the pedestrian lane at the time she was struck.