Edwards v. McCormick

California Court of Appeal May 21, 1947 No. Civ. No. 15490Published

Before: Doran

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Holding. The court held that whether a driver's failure to yield the right of way or a pedestrian's conduct constitutes negligence or contributory negligence are questions of fact for the jury, not matters of law, when evidence is conflicting.

Issues

Whether the trial court erred in refusing to instruct the jury that the defendant was negligent as a matter of law.
Whether the deceased was free from contributory negligence as a matter of law.
Whether the admission of evidence regarding the deceased's prior activities constituted reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under the evidence disclosed by the record, negligence and contributory negligence were questions of fact and not of law.”

“It would have been an invasion of the province of the jury for the court to have laid down an inflexible rule that if respondent did not yield the right of way he was negligent as a matter of law.”

DORAN, J. This is an appeal by plaintiff from the judgment following a verdict for defendant in an action for damages resulting from an accident.

The facts briefly are as follows: Defendant was driving east on Olympic Boulevard in Los Angeles about midnight; Olympic Boulevard is a four-lane highway with a double white line in the center thereof and a single white line dividing the two lanes of traffic in each direction east and west. Defendant was driving east on Olympic in the southern lane; there was little traffic; Stephen Louis Edwards crossed Olympic on the east side of Amalia Street from the northeast corner of Olympic and Amalia to the southeast corner; while so doing he was struck by defendant’s ear and killed. Clyde S. Leaker, who happened to be following about one hundred feet behind, testified that defendant’s car was traveling about thirty miles an hour. Leaker’s description of the accident is in part as follows:

[802]“Q. As you were in Atlantic Boulevard did you observe any one at the northeast corner of Amalia and Olympic? A. Yes, I did. There was a pedestrian there, walking south.

“Q. Walking south? A. Yes.

“Q. Did you see him enter the street? A. I saw him— first saw him just about the time he stepped off of the curb into the street.

“Q. Did you observe the manner in which he walked? A. Well, it was quite a brisk pace—yes. He was walking erect and fairly brisk. Not fast, but walking right along.” . . .

“Q. Now, how far, if at all, was this man, the man who was killed, how far was he across that highway when you noticed any change in his speed? A. He was within about 3 feet of the southerly white line. About 3 feet north of the southerly white line, approximately.

“Q. Approximately 3 feet- A. North.

“Q. Of the white line? A. Yes.

“Q. In other words, he had walked that distance in the same brisk walk he had been going before, is that the idea? A. Yes. . . .

“Q. By Mr. Bodkin: At that time did the McCormick automobile slow down at all? A. No.

“Q. He didn’t slow down? A. No. The red taillights did not come on at all until after the accident.

Edwards v. McCormick

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