Cohen v. Hunter

MUSSELL, J. Plaintiff appeals from an adverse judgment in an action for personal injuries sustained by her when a baby carriage which she was pushing across Midway Drive in San Diego collided with an automobile operated by defendant.

The sole question presented is whether the evidence supports the implied finding of the jury that plaintiff was contributorily negligent. This question must be answered in the affirmative.

Midway Drive is an arterial boulevard which, at the place [465]of the accident, runs generally north and south, is approximately 51 feet wide and is divided into four marked traffic lanes. The two traffic lanes on the east were divided by a single white line and the east and west traffic lanes were separated by a double white line in the center of the drive. Fordham Street intersects Midway Drive at right angles. It is 46% feet wide west of Midway Drive and 25% feet wide easterly thereof. There were well defined pedestrian crosswalks crossing Midway Drive on both the northerly and southerly sides of the intersection.

At the time of the accident (about 7:30 p.m.), December 21, 1947, the intersection was well lighted, the weather was clear, the pavement dry and the visibility good.

The plaintiff, with a companion, was crossing Midway Drive from west to east in the north crosswalk. She was pushing a baby carriage, with her grandson in it. When she had crossed the double line in Midway Drive and was approximately on the center line between the two easterly lanes of traffic, the baby carriage collided with the left rear fender and hubcap of an automobile being driven by the defendant northerly in the east traffic lane of Midway Drive. Plaintiff was not struck by the automobile, but received injuries in the accident of which she now complains.

The defendant approached the intersection at a speed of from 15 to 20 miles per hour, slowing down as he approached the south crosswalk. He testified that as he approached the intersection, he did not see any cars stopped near the crosswalk and did not see anyone in it as he came up to and entered the intersection; that when he first saw the pedestrians, he was approximately at the north, curb line of Fordham Street; that he applied the brakes and stopped his car within a length or two thereof after the impact.

The plaintiff testified that before she entered Midway Drive she looked to her left to see if there was any traffic going south, and there being none, she stepped off the curb and proceeded to cross Midway Drive in the center of the painted crosswalk and was wheeling her grandson in a baby buggy before her; that as she neared the center of Midway Drive, she looked to see if there was any traffic coming north, when she saw a car that had stopped in the southerly crosswalk to let her go on; that as the car stopped, she looked again, continued walking, and that when she had crossed three lanes and was in the fourth lane, she was struck by the automobile;