Breaks v. Anderson

NOURSE, P. J. Mrs. Breaks and her companion alighted from a car at the intersection of Middle Road with El Camino Real north of the main part of the town of Belmont. They walked south on the east side of the highway to a point approximately midway between Middle Road and the Ralston Street intersection. The sidewalk was rough and covered with gravel. The sidewalk on the west side of the highway appeared to be better and they crossed the highway to reach the western sidewalk. El Camino Real was at that point a four-lane through highway marked with a double line in the center and two single lines marking each lane. The time was between 9:30 and 10 p. m. of a Saturday night. Before they left the easterly curb the two ladies observed the lights of an approaching car. They stopped at the double center line and again at the single line dividing the two southbound lanes and at both times saw the approaching lights of respondent’s ear. They continued to a point near the westerly curb where Mrs. Breaks was struck by the car and seriously injured. She and her husband sued Anderson and his wife. We will hereafter refer to her as appellant and refer to Mr. Anderson as respondent. On the issue of negligence the evidence was that defendant was traveling at a speed of approximately 35 miles an hour in a 35-mile zone. His lights were in good order, and no evidence was offered tending to show inadequate brakes or other mechanical defects. He first saw the parties when he was about 75 feet from them and applied his brakes when between 75 and 40 feet away. There was some testimony that the ladies walked at a “brisk” pace to the line of the westerly lane and then ran across that lane to the curb. This is the evidence upon which plaintiffs relied to support their charge of negligence. There is no material conflict.

On this evidence the jury returned a verdict that defendant was “not guilty” from which it may be assumed that they found that the charges of negligence were not proved.

The appeal is grounded on asserted errors in instructions given and refused. Appellant complains of the refusal of the trial court to give her proposed instruction reading in part: “While it is the duty of both the driver of a motor [694]vehicle and a pedestrian, using a public roadway, to exercise ordinary care, that duty does not require necessarily the same degree of caution from each.” The proposed instruction was not a correct statement of the law. Since there is no distinction in the meaning of the words “care” and “caution” when used in this connection, it would have been error to have instructed the jury that the parties were not required to use the same degree of care, or caution. There is no difference in the “degree” of care required. It is the “amount” of care which is the controlling factor. The rule is clearly stated in Lasater v. Oakland Scavenger Co., 71 Cal.App.2d 217, 221 [162 P.2d 486], as follows: “Appellants proposed an instruction that by reason of the fact that she was dressed entirely in black she should have used ‘ a greater degree of care ’ for her own safety. The instruction was erroneous in using the word ‘degree’ instead of ‘ quantum’ or ‘ amount. ’ The degree of care required of a person for his own safety is always the same, i. e. ordinary care, although in some circumstances the quantum or amount of care required to reach the degree of ordinary care is greater than in others. While neither courts nor lawyers have uniformly observed this distinction in terminology, it is a substantial one and well established in our law. [citing cases].”