Jackson v. Lovas

VALLÉE, J. Plaintiff appeals from “the verdict of the jury in the above-entitled action in favor of defendant and against plaintiff.” An appeal does not lie from a verdict. (See authorities cited in 5 West’s Cal. Dig., Appeal & Error, § 108, p. 133.) However, taking the notice of appeal, together with the “Notice To Prepare Reporter’s Transcript On Appeal,” which requests a transcript of the oral proceedings and the instructions given “for use by the appellant on the appeal from the judgment herein,” we will treat the appeal as one from the judgment. The action is for damages for personal injuries sustained by plaintiff when struck by defendant’s automobile.

The accident occurred about 7:30 p. m. on March 14, 1949, in the center of a public sidewalk. Defendant was backing his automobile out of the driveway of his home on the east side of Naples Avenue, when he struck plaintiff, who was walking in a general northerly direction on the sidewalk. It was a “very dark” night.

[428]Appellant’s contention that the evidence is insufficient to sustain the verdict finds no support in the record.

Defendant testified he got into his automobile, which he had parked in the driveway of his home earlier that evening, turned on the headlights, started the motor, looked back over his shoulder through the rear window a couple of times to one side and then to the other, put the car in gear, released the emergency brake, opened the left-hand door in order to look back, and started backwards. He did not see plaintiff. In backing his car he moved at a speed of about 2 or 3 miles an hour until he felt the impact, when he immediately stopped and pulled forward to where he had started.

Plaintiff testified that he had been walking up and down the block and had seen defendant’s car as he “walked by there five or six times.” The ear was just standing there; no one was in it; no lights were on. The last time he saw the car was when he was about 6 or 8 feet of the driveway— “just before I was hit I glanced at it again, and I would say I was six feet or eight feet from it.” He was struck by the right rear of defendant’s car, when he was “on the south portion” of the driveway about the center of the sidewalk. Plaintiff also testified that his hearing and eyesight were “good,” but he neither heard the engine of the automobile or its gears, nor did he see the ear in motion at any time.

The foregoing résumé of the evidence amply supports an implied finding that defendant exercised due care or that plaintiff was contributively negligent.