Powers v. Cherry

YORK. P. J. This is an action for personal injuries received by appellant on or about the 5th day of March, 1938, [490]while walking along Ventura Boulevard near its intersection with Vineland Avenue, and is based upon the alleged negligent operation of an automobile by respondent. At the conclusion of appellant’s case respondent moved for a nonsuit which motion was by the court denied. At the conclusion of the trial the court on respondent’s motion directed a verdict in his favor and denied appellant’s motion for a new trial. This appeal is prosecuted from the judgment which was thereafter entered pursuant to said directed verdict, as well as from the order denying a new trial.

The facts which form the basis of the instant litigation are as follows: Ventura Boulevard in the city of Los Angeles extends in a general easterly and westerly direction and is approximately seventy feet wide between Lankershim Boulevard on the east and Vineland Avenue on the west. On March 5, 1938, as the result of extremely heavy rain storms which had washed out bridges and interrupted transportation in the North Hollywood district, the described portion of Ventura Boulevard was partially covered with sand, mud and other debris, and for some distance east and west thereof traffic was blocked off except for the cars of residents of the said district. Just north of and adjacent to Ventura Boulevard in this area was a Pacific Electric Railway right of way and tracks which gradually circled away from the boulevard as it progressed westerly toward Vineland Avenue where the tracks proceeded due north. At approximately 10 o’clock in the evening of said March 5th, appellant was on his way from his place of business to his home which was situated near Vineland Avenue north of Ventura Boulevard, and was walking westerly from Lankershim Boulevard on the south side of Ventura Boulevard, using a footpath slightly south of the south curb thereof. When he reached the M. & M. Auto Court which was two or three blocks west of his starting point, appellant crossed Ventura Boulevard from the south to the north side, in order to reach the aforesaid Pacific Electric tracks which were higher than the surrounding terrain, were free from debris and mud, and furnished a direct route to appellant’s home.

As he crossed to the northerly side of the boulevard, appellant encountered mud and debris which extended out into the highway from the northerly curb thereof, whereupon he turned and walked in an easterly direction for fifteen or twenty feet along the edge of this debris which he testified