Levin v. Martin

YORK, P. J. From a judgment in favor of plaintiff, defendants prosecute this appeal, contending that the evidence (1) shows that plaintiff was guilty of contributory negligence as a matter of law; (2) fails to show any negligence on the part of defendants, and is therefore insufficient to support said judgment.

The accident resulting in the instant litigation occurred around seven o’clock in the morning of December 24, 1942, at the intersection of Locust Avenue and Fourth Street in the city of Long Beach. A copy of the map of the intersection used at the trial herein is not included in the record; consequently, some of the testimony, which refers to certain points on said map without further explanation, is more or less unintelligible and unenlightening.

Locust Avenue runs north and south, Fourth Street, east and west, and they intersect at right angles, each street being 50 feet wide with curbing, parkway and sidewalks. The pedestrian crosswalk across Locust on the south side of Fourth Street is 16 feet in width. At the time of the accident, said intersection was included in a “dim out” zone, it was raining slightly and the visibility was poor. Respondent was on his way to work, walking in a westerly direction on the south sidewalk of Fourth Street approaching Locust Avenue, it being his intention to continue westward on Fourth Street across Locust to Pine Avenue, the next street west of Locust. When respondent reached the easterly curb line of Locust Avenue, he stopped, looked to his right (north), to his left (south), and ahead (west, the direction from which appellant was approaching). Seeing no traffic, he walked straight ahead and had advanced only a few steps in his progress across Locust, not reaching the center thereof, when he was struck by appellant Margaret E. Martin, who was driving an automobile owned by her sister, appellant Marion A. Martin. Respondent lost consciousness momentarily, and when he revived he was lying on the pavement “just where about the stop mark is,” with a man bending over him. He attempted to rise but was unable to do so, having sustained [328]a fracture of his right leg just helow the knee, and bruises on the right side of his face and over his eye. He was removed to the steps of a church located at the southwest corner of the intersection. He testified that he was not wearing glasses, had walked in dim outs before, knew he was in a dim out area and that automobiles were equipped with dim out lights, and that he was able to see such dim out lights as they came toward him in the street, but did not see appellants’ car at all; that he did not know what struck him and did not know whether he was thrown by the automobile or not. On cross-examination respondent was questioned with respect to a deposition which he made before the trial in which he was asked: “When you came to, where were you lying on the street? A. Well, somewhere in the street near the crossing. Q. How far south of the crossing were you when you came to? A. I really couldn’t say. Q. Were you as much as 15 feet? A. It would be very difficult for me to designate the exact spot. Q. I understand that, but would you say you were between 15 and 30 feet? Would that be a fair estimate? A. Yes, sir, approximately that. Q. Now there’s no question about, that, is there? I mean that’s your best recollection? A. Yes.” Respondent acknowledged that he so testified, but stated ‘ ‘ That 15 and 30 feet was your (the attorney’s) idea, not mine.” To this counsel replied: “Maybe it was my idea. I’ll confess to it at this time, but tell me please, here, when you read your deposition over, you didn’t change those answers?” Respondent admitted he made no changes in the deposition.