Sherrod v. Saunders

DORAN, J. In this action for damages for personal injuries the jury returned a verdict for defendants and plaintiff appeals from the judgment that followed.

It is contended on appeal that the verdict was contrary to the facts and the law. It is also urged that certain instructions were “contrary to law, contradictory in fact, and misleading to the jury. ’ ’

The statements of facts in the respective briefs reflect the controversy. Appellant’s brief recites: “The following facts are undisputed: On the evening in question, the plaintiff while acting as a State Highway Patrol Officer, was called to [161]the scene of an accident which had occurred at the above mentioned intersection. Imperial runs east and west and St. Andrews, north and south, the latter intersecting Imperial Highway only on the north, and not being cut through on the south side of Imperial. The center of Imperial was distinctly marked with a painted double white line.

“The plaintiff went to the center of the intersection from the south side of Imperial and made observations for the purpose of his report, and was standing on the double center line, or had started to walk from the center line of Imperial in a southerly direction along a line that coincided with the westerly curb line of St. Andrews, when defendant, westbound, ran into plaintiff. Defendant admitted that he never saw the plaintiff at any time before the accident, although his headlights were burning. The plaintiff was at the time of the accident looking to his right, to the west, the direction from which traffic might be anticipated, in crossing the southerly half of Imperial Highway. His flashlight was burning and held in his hand, or under his arm, at all times. ’ ’

Respondent on the other hand recites the facts as follows: ‘ ‘ Taking the evidence in the light most favorable to defendant, defendant was at all times on the north side of the double white line, i.e., on the right side of the highway as he drove west. Defendant was driving at a moderate rate of speed, and had his headlights on. Defendant did not see plaintiff until just before the impact, from which it may be inferred that plaintiff stepped over the white line into the path of defendant’s oncoming vehicle, or else was at all times north of the double line. Plaintiff had been standing in the middle of the road with his back toward west bound traffic. Plaintiff, a highway patrolman, had been investigating a prior accident and was writing on a sheet of paper. He used no care or diligence to observe cars "coming from defendant’s direction. Plaintiff had previously put red flares upon the highway but had carelessly allowed them to die out and had carelessly failed to replace them.