Glover v. Los Angeles Railway Corp.

SHINN, J. Defendant prosecutes this appeal from a judgment pursuant to the verdict of a jury in an action for damages sustained by plaintiff, a pedestrian, in a collision with a motorbus of defendant.

The accident occurred about 6:15 p. m., December 12, 1943, as plaintiff was crossing San Julian Street in Los Angeles. It was almost dark and the headlights and inside lights of the bus were on. Plaintiff was walking easterly on the southerly sidewalk of Seventh Street and as he approached the intersection of San Julian Street the bus was standing at the south curb of Seventh, the front end of it being about 10 feet west of the westerly curb line of San Julian. Plaintiff was intending to continue across San Julian; the bus was to turn the corner to go south on San Julian, but plaintiff did not know this. There were no traffic signals at the corner. The driver of the bus did not see any pedestrians in the vicinity of the west curb of San Julian; he did not at any time observe plaintiff approaching and did not know an accident had occurred until a passenger called out. The bus was about 35 feet long; San Julian Street was 40 feet in width. Plaintiff stepped into San Julian Street and started to cross within an unmarked crosswalk. The bus swung around the corner and plaintiff came into contact with the right front wheel of it, which was about 6 feet 4 inches to the rear of the front of the bus. As the bus was making a sharp turn to the right, the front wheel was extended outward and plaintiff’s leg was caught and jammed behind the wheel and severely injured. Counsel for defendant properly concede that there was sufficient evidence to support the implied finding that its driver was negligent. They earnestly insist, however, that the pleaded defense of contributory negligence was established by the proven circumstances of the accident and by plaintiff’s own testimony which, it is contended, clearly showed that he failed to exercise ordinary care as he started across the street.

In the course of plaintiff’s cross-examination he testified as follows: “Q. As you stepped from the curb into the street, did you look to your left? A. No; no more than maybe putting my eye over; I don’t remember turning my head. Q. You don’t remember looking to the left as you stepped from the curb to the street? A. No. Q. You would say you did not, then? A. I don’t get it. Q. You say you did not look to the left ? A. I would say I did not turn my head. Q. Do [189]you recall whether you looked to the left as you stepped off the curb into the street? A. No. I don’t recall. Q. The next thing you knew you were in contact with some part of the bus? A. Yes.” The quoted testimony, considered by itself, would make it appear that plaintiff took no precautions for his safety as he attempted to cross the street, but this conclusion does not necessarily result when the testimony is considered with the entire circumstances of the accident. Plaintiff also testified that he saw the bus as it was standing at the curb before he entered San Julian and that he was not certain, but that he must have taken four or five steps before coming into collision with it. He was 28 years of age and wore a patch over his left eye. A fact which the jury and the trial judge no doubt deemed'to be of importance is that there is a jog in San Julian Street at Seventh Street, the south intersection being some distance west of the north intersection. Obviously it would not have been difficult for a pedestrian, situated as plaintiff was, to have a view of vehicles being driven across Seventh Street from the northerly to the southerly intersections of San Julian. The only vehicles which would be encountered under the circumstances would be those which came from the east on Seventh Street and turned south into San Julian, those which came from the south on San Julian, and those which might be rounding the intersection, as the bus was. Plaintiff testified that as he entered San Julian he was ahead of the bus; that after he passed it as it stood at the curb he did not see it before coming into contact with it, and that at that time he was looking to his right. He also testified that when he last saw the bus standing at the curb on Seventh Street he was only a couple of steps away from the curb on San Julian. Witnesses who were on the bus also testified, but their testimony added nothing to the circumstances of the accident as above related. The essential question is: was plaintiff guilty of negligence as a matter of law in failing to look to his left again before leaving the curb, in order to see whether the bus was coming around the corner. It is our opinion that the question whether he failed to exercise ordinary care was one of fact, as the learned trial judge concluded after he had reviewed the transcript of the evidence upon the motion for a new trial. It is inherent in the jury system that divergent views as to what constitutes ordinary care will be held by individual jurors and will be reflected in