Nosbonne v. Brill

California Court of Appeal Jul 16, 1942 No. Civ. No. 11507Published

Before: Peters

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Holding. The court held that a municipal ordinance prohibiting pedestrians from crossing roadways outside of crosswalks is invalid because the state has fully occupied the field of pedestrian traffic regulation, and its admission into evidence constitutes prejudicial error.

Issues

Whether a municipal ordinance regulating pedestrian traffic is invalid due to conflict with state law.
Whether the admission of an invalid municipal ordinance and the giving of conflicting jury instructions based thereon constitutes reversible error.

Disposition. reversed

Quotations verified verbatim against the opinion

“The Supreme Court held that the city ordinance, at least insofar as it attempts to regulate the rights of pedestrian traffic in relation to vehicular traffic, was invalid as beyond the power of the municipality”

“The admission into evidence of the ordinance, over objection, and the reading of it to the jury, when such ordinance was unconstitutional and contained a totally incorrect statement of the standard of care required of pedestrians, was clearly error”

PETERS, P. J. Plaintiff appeals from a judgment for defendant entered after an adverse jury verdict in an action brought by plaintiff to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Appellant concedes that the evidence is conflicting, but urges that the trial court committed error in instructions given and refused, and in admitting into evidence an ordinance of the city of Oakland, which, it is urged, is invalid because in conflict with the provisions of the Vehicle Code. The submission of this appeal was held up to await the decision of the Supreme Court in Pipoly v. Benson, 20 Cal. (2d) 366 [125 P. (2d) 482], which involved the identical point last above mentioned. The decision in that case has now become final, and for reasons stated therein, the judgment here appealed from must be reversed.

The accident occurred between 9 :30 and 10:00 p. m. on July 7, 1939, while appellant was crossing on foot from the east to the west side of College Avenue in the city of Oakland, near the intersection of College Avenue with Manila Avenue and Hudson Street. Hudson Street stops on the west side of College Avenue, while Manila Avenue continues both east and west of College Avenue. On the west side of College Avenue both Manila Avenue and Hudson Street intersect College Avenue at other than right angles. The result is, that at the intersection there are five corners. There is a pedestrian crosswalk delineated on the street extending from the northeast comer of College and Manila Avenues across College Avenue to its west side. Appellant testified that she was crossing in this pedestrian lane when she was struck. Respondent, and several other witnesses, testified that appellant was outside the pedestrian lane when hit.

The trial court admitted into evidence over appellant’s objection, an ordinance of the city of Oakland which provides: “No pedestrian shall cross a roadway except at a crosswalk or regularly established pedestrian lane. ’ ’ An instruction was given based on this ordinance, as well as one predicated on section 562 of the Vehicle Code, which provides:

“(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.

“(b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway.” The court also [438]

Nosbonne v. Brill

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