Foy v. Carlton

YORK, P. J. This is an action to recover damages for injuries sustained by appellant in an automobile accident which occurred at the intersection of Third and Lorraine Streets in the city of Los Angeles on November 27, 1936, at about 7 o ’clock in the evening. At the conclusion of the trial before a jury, the court directed a verdict in favor of respondent on the ground that appellant was guilty of contributory negligence as a matter of law. Upon this appeal from the judgment which was subsequently entered, appellant urges that the court erred in granting the motion for a directed verdict for the reason that the question of negligence should have been submitted to the jury.

[576]At the point where the accident occurred, Third Street runs east and west, Lorraine north and south, the two streets intersecting at a right angle. Third Street is approximately 60 feet wide and is traversed by two sets of ear tracks, one for eastbound and the other for westbound traffic. It is 25 feet from the north curb of Third Street to the most northerly rail of the north car tracks carrying westbound traffic. A safety zone for westbound passengers which is approximately 4 feet wide and 60 feet long is located north of the north ear tracks and east of Lorraine Street. Appellant lived on the east side of Lorraine north of Third Street, and immediately before the accident, he was walking south toward Third Street on the sidewalk on the east side of Lorraine. When he reached the curb at the northeast corner of the intersection, he stopped to allow a number of automobiles to pass. As he stepped off the curb he looked to the east and to the west and observed a street car moving east on Third Street west of Lorraine. He also observed respondent’s automobile traveling west on Third Street in the north car tracks at a distance of 350 or 400 feet east of the said intersection. Appellant testified that he walked directly across Third Street and when he reached a point which was about 22 feet from the curb and two or three feet from the most northerly rail of the north car tracks, he again observed respondent’s automobile, which was then 50 or 60 feet from him, traveling in the north ear tracks. Appellant then took another step or two forward, and as respondent’s car struck him he “made one step back or wheeled to the side” and was thrown six or seven feet in a northwesterly direction, thereby sustaining severe injuries to his left leg and ankle which have resulted in permanent disability.

Respondent admitted that he did not see appellant until the moment of the impact and that he did not apply his brakes until after the collision. He testified that his speed was 20 to 25 miles per hour, and a witness called in his behalf estimated the speed of his automobile at 30 miles per hour. Appellant testified that in his opinion respondent’s speed was 50 or 60 miles per hour. After the collision, respondent swerved south and stopped his ear facing south at the southwest corner of the intersection.