Burr v. Damarel

GRAIL, P. J. for damages for personal injuries from an automobile accident which occurred at the intersection of York Boulevard and Avenue 51. York Boulevard runs from east to west, Avenue 51 from north to south. The plaintiff was crossing York Boulevard in the pedestrian cross-walk at the east side of Avenue 51. Going north, when he reached the south curb of York Boulevard he stopped and looked to his left and to his right. The traffic was heavy coming from the east but there were no automobiles approaching the intersection from the west within one block. It was dark at the time but the intersection was well lighted and all automobiles had their headlights lit. After stopping and looking at the curb he left the curb, looking either straight ahead or to the east until he reached a point between the car tracks which run over York Boulevard, at which point he stopped and looked to the right for a period of 25 or 30 seconds, and he then looked to the left and saw the defendant’s car approaching from the west about 45 feet away. At this time the lane of automobiles which was proceeding west and which was nearest to the center of York Boulevard was traveling with the left wheels of the automobiles about the center of the westbound car tracks. Prom that time until the accident plaintiff did not move and was immediately thereafter struck by the defendant’s car.

[624]The first contention of the defendant is that plaintiff was guilty of negligence as a matter of law. This point is untenable. The plaintiff looked and he used precautions for his own safety. Whether he was guilty of negligence is a question of fact to be determined by the fact-finder under all the facts and circumstances in evidence bearing upon the question. (Curric v. Nelson Display Co., 19 Cal. App. (2d) 46 [64 Pac. (2d) 1153]; Pinello v. Taylor, 128 Cal. App. 508 [17 Pac. (2d) 1039]; Filson v. Balkins, 206 Cal. 209 [273 Pac. 578]; MacCorkell v. Williams, 111 Cal. App. 572 [295 Pac. 879] ; Crooks v. Doeg, 4 Cal. App. (2d) 21 [40 Pac. (2d) 590].)

The defendant’s second contention is that the court erred in giving to the jury the following instruction: “I instruct you that it is not contributory negligence to fail to look for danger where there is no reason to apprehend any danger.” The court used the same language in the case of Pinello v. Taylor, supra. The trial court fully and correctly instructed the jury on the question of contributory negligence, and while the language above set out is not commended, we find no reversible error therein.