Hubbell v. Clink

DESMOND, P. J. In an action for damages for personal injuries sustained as a result of being struck by defendant Robert Clink’s automobile, plaintiff recovered from him and his parents a judgment in the sum of $3,661, together with costs in the sum of $32.90. The action was tried by a court sitting without a jury. At the time of the accident Robert was a minor, 20 years of age, living with his father and mother who had signed his application for a driver’s license. The appeal is from the judgment and the only assignment of error is that the trial court’s finding that plaintiff was not contributively negligent is unsupported by the evidence. It is claimed that the evidence establishes as a matter of law that he was contributively negligent.

The accident occurred in Los Angeles on Glendale Boulevard, July 12, 1940, about 8 o’clock p. m., just north of the point where the Sunset Avenue viaduct crosses that boulevard near Reservoir Street and approximately opposite an alley opening upon it. Glendale Boulevard passes under the viaduct in a northeasterly direction, but opposite the alley curves and extends in a northerly direction. At this point the boulevard is divided into two distinct halves by a Pacific Electric right-of-way. We are concerned only with that portion of Glendale Boulevard which lies east of the private right-of-way, and for purposes of this opinion shall refer to the easterly half as Glendale Boulevard. It is 43 feet, 6 inches in width. On the easterly portion of its right-of-way the Pacific Electric maintains a paved streetcar passenger loading zone for traffic going in a northerly direction. There is no marked pedestrian crosswalk on Glendale Boulevard at the place where respondent undertook to cross. This is a 25-mile speed limit zone and at the time of the accident it was a poorly lighted section, there being but one light over the passenger loading zone “high above a pole.” Robert Clink, at the time of the accident, was driving his Ford automobile in a northerly direction on Glendale Boulevard. The plaintiff, the court found, “was at or near the streetcar loading zone” approximately opposite No. 1316 on said Glendale Boulevard, and [297]that “the defendant Robert Eugene Clink did so negligently, recklessly and carelessly drive, propel, operate and control said Ford automobile as to cause the same to jump the curb, travel upon said streetcar loading zone, and to strike the plaintiff and knock him to the street thereby inflicting injuries upon the plaintiff. ...” After the accident the automobile came to rest with its right front wheel in the gutter and its left front wheel “upon the curb of the Pacific Electric right-of-way safety zone. ” It was headed in a northerly direction. There were but two eyewitnesses to the accident, the plaintiff and the driver defendant, and their testimony as to how and where the accident occurred presented a sharp conflict, as hereinafter appears.