Bush v. Los Angeles Railway Corp.

WOOD (Parker), J. Defendant appeals from an order granting plaintiff’s motion for a new trial.

The action was to recover damages for personal injuries suffered by plaintiff, a pedestrian, when he was struck by one of defendant’s streetcars in the city of Los Angeles. The court, at the close of the evidence and upon defendant’s motion, directed a verdict in favor of defendant. The court granted plaintiff’s motion for a new trial upon the ground that the evidence was insufficient to sustain the verdict. Defendant contends that plaintiff was guilty of contributory negligence as a matter of law, and therefore the court erred in granting plaintiff’s motion for a new trial.

The accident occurred about 5:30 p. m., after dark, on December 27, 1941, in the marked pedestrian crosswalk immediately south of the intersection of Virgil Avenue and Santa Monica Boulevard. Virgil Avenue extends north and [466]south; Santa Monica Boulevard extends east and west; but they do not cross at right angles. There is a jog in Virgil Avenue at the intersection. Virgil Avenue at the north of the intersection extends farther east than Virgil Avenue at the south of the intersection—the northwest corner projecting about 55' feet farther east than the southwest corner, and the northeast corner projecting about 51 feet farther east than the southeast corner. Santa Monica Boulevard is approximately 60 feet wide. Virgil Avenue, at the south pedestrian crosswalk, is approximately 94 feet wide from the west curbline to the east curbline, and at the north pedestrian crosswalk is approximately 89 feet wide. The west rail of the southbound streetcar track on Virgil Avenue north of the intersection is approximately 21 feet east of the northwest corner curbline, and the west rail south of the intersection is approximately 59 feet east of the southwest corner curbline; in other words, the northwest corner of the intersection was closer to the rails than the southwest corner, and the rails extended diagonally, from northeast to southwest, across the intersection. (Exhibit 1, introduced by the plaintiff and reproduced by photostat at page 20 of the transcript presents a picture of the intersection.) It was stipulated that the intersection was controlled by “semaphore signals and during darkness by red and green lights.”

Plaintiff was 75 years of age at the time of the accident, was wearing dark clothing, and carrying a cane which was “partially painted white.” He had had two cataract operations in 1941. Plaintiff had been to a theater and was walking to his daughter’s home which was in that vicinity.