Walsh v. Tuyle

DORAN, J.. —Plaintiff and appellant, Joe Ann M. Walsh, a minor, six years of age, by her guardian ad litem, brought this action to recover alleged damages resulting from personal injuries to herself when she was struck by an automobile driven by the defendant Mary Van Tuyle on Colorado Boulevard, west of its intersection with Everett Street, in the city of Glendale, California, about 6:30 P. M., January 22, 1936.

The defendant denied negligence in the operation of the automobile, and by her answer set up the defense of contributory negligence on the part of plaintiff.

The case was tried before a jury which gave its verdict for the defendant, and judgment for the defendant was entered accordingly. Plaintiff appeals from the judgment.

The evidence is in conflict as to whether the street lights were turned on at the time of the accident, which occurred, as described by one witness, at dusk. Respondent was driving her automobile west on Colorado Boulevard and although it is fairly established that at a point approximately two hundred or three hundred feet east of the intersection respondent was operating her automobile at a speed of twenty-five to thirty miles an hour, there is no direct evidence as to its speed at the instant of the impact. There is evidence, however, that the speed of the machine was decreased while crossing the intersection. The evidence further reveals that the automobile had crossed the intersection, and at a point approximately fifteen feet west of the westerly edge of the [304]pedestrian crosswalk, which was marked on and across Colorado Boulevard at the west side of the intersection, appellant undertook to cross Colorado Boulevard from the north side to the south side and ran in front of respondent’s approaching automobile.

The evidence reveals that appellant was on her way to the grocery store of the witness Sheridan, located on the southwest corner of the intersection. The evidence reveals further that the child had been in the habit of patronizing Mr. Sheridan’s store and that it was her custom to wait on the opposite side of Colorado Boulevard until Mr. Sheridan would appear and by motion of the hand indicate to her to cross the street. Mr. Sheridan testified that there were no cars coming from the west, “but there was one car coming from the east and it was quite a little bit away, but I just didn’t want the little child to start across the street until I would give her my motion”. “Q. (By counsel for defendant.) When you saw the little girl for the first time she was—you put your hand up? A. Yes, sir. Q. In that manner. And was extended out from the body? A. Yes, like that. Q. With the fingers pointed upward? A. Yes. Q. Your idea in doing that was that you did not want the little girl to cross the street just at that time? A. Yes. Q. But the little girl did cross the street by running, didn’t she? ... A. Yes, she ran.”