Benites v. Adams

DORAN, J. This is an action for damages for personal injuries sustained by plaintiff when struck by an automobile.

The trial was by the court without a jury. As a conclusion , of law the court found as follows: 1 ‘ That defendant was not free from negligence in failing to observe the plaintiff’s position at the time of the accident. That plaintiff was guilty of contributory negligence in failing to take due precautions for her own safety at the time of the accident and that such negligence on the part of the plaintiff, Bose M. Benites, directly and proximately contributed to her injuries.”

The facts are simple. They are recited in appellants’ brief as follows: 1 ‘ Plaintiff left grocery store at the corner of Olympic and Sixteenth Streets about 75 feet north of where the accident occurred and walked southerly on the west side of Sixteenth Street. Plaintiff stayed on the sidewalk all the time. Along the westerly side of the sidewalk from the rear of the grocery to the northerly side of the defendant’s driveway there was a picket fence 59 or 60 inches high. This picket fence connects at right angles at the sidewalk line with a fence or a hedge 5 feet high covered with bushes, foliage and shrubbery, adjacent to and paralleling on the north, the entire length of defendant’s driveway. The hedge is thick in some places and has openings in others. Plaintiff by looking over picket fence and hedge fence as she approached defendant’s driveway, could have seen defendant’s car. Likewise, defendant could have seen plaintiff. Plaintiff did not look to see if there would be a car coming out of the driveway but looked straight forward and she did not see any car, or hear anything before she was struck. Prior to the collision defendant’s car was standing on his driveway about 10 feet from the sidewalk. The driveway sloped about 10 inches in 14 feet down to the sidewalk level. In backing from defendant’s position toward the sidewalk and street the first 4 feet is a slight slope; after getting over that point the slope goes down rather quickly and rapidly. Santa Monica City Ordinance No. 648 provides that in driving an automobile out of a private driveway over a sidewalk the driver must stop before passing over the sidewalk. Defendant started backing his car at the top of the slope aforesaid and did not stop before crossing the sidewalk but backed completely across same to the street at a speed of about 5 miles per hour but at an accelerating rate. Defendant blew his horn before starting his car. He looked back but did [395]not see plaintiff until after the collision. In crossing the private driveway plaintiff was struck at her knees by defendant’s car and rolled over into the street, suffering a comminuted fracture of the knee and other injuries. ’ ’