Westholm v. Pratt

WOOD, J. Plaintiff appeals from the judgment entered upon a verdict in favor of defendants, in this action for [273]damages for wrongful death of plaintiff’s husband, who died as a result of being struck by an automobile driven by defendant Pratt and by an automobile driven by defendant Fluhrer. She also appeals from an order denying her motion for a new trial. The appeal has been dismissed, upon stipulation, as to defendant Fluhrer. Defendant Pratt will be referred to as the defendant.

Appellant contends that the evidence was insufficient to support the judgment. She argues that there was no evidence of contributory negligence on the part of decedent, and that defendant was guilty of negligence as a matter of law.

The accident occurred on February 3, 1946, about 7 p. m., at the intersection of Sunset Boulevard and Micheltorena Street in Los Angeles. About 6:45 p. m. on that day, Mr. Westholm left his home on Micheltorena Street, north of Sunset Boulevard, intending to board a streetcar at the intersection. Micheltorena Street intersects Sunset Boulevard on the north only—there is no intersecting street on the south side of Sunset Boulevard at or near this intersection. Sunset Boulevard is 76 feet wide, is paved, and is divided by white lines into four vehicular-traffic lanes—two for eastbound traffic and two for westbound traffic. Near the center of the boulevard there are two streetcar tracks—one for eastbound cars and one for westbound cars. A passenger safety zone, which is designated by white lines on the pavement, is near the south rail of the eastbound car track, and adjoins the west entrance of the intersection.

Defendant testified that he was driving east on Sunset Boulevard at a rate of speed between 20 and 25 miles an hour; that as he approached the said intersection—when he was about 60 feet west of the safety zone—he observed the safety zone reflector buttons and the white marker or diagonal line which extends west from the west end of the zone, and then, in order to pass to the left or north side of the safety zone, he turned his automobile to his left and across the eastbound car track so that the right wheels of his automobile were just north of the south rail of the eastbound car track; that when he was about 3 feet west of the east end of the safety zone, a man standing in the zone seemed to be leaning to the north out into the street, and the right front fender of defendant’s automobile struck him; that the body rolled on the hood of the automobile and then rolled off the right side of the hood; that after the impact the defendant parked his