Bishop v. Reid

WOOD (Fred B.), J. Defendant has appealed from a judgment awarding plaintiff damages for personal injuries sustained by plaintiff when hit by an automobile driven by defendant.

The accident occurred at the intersection of Chestnut and Fillmore Streets, San Francisco. Plaintiff was walking across Fillmore, from the northeast to the northwest corner of the intersection, in a marked pedestrian crosswalk. Defendant, who had been driving in an easterly direction on Chestnut, had just made a left turn and was going north on Fillmore.

The .trial court held, as a matter of law, that defendant was negligent and plaintiff not negligent, and so instructed the jury.

Defendant claims this holding and instruction erroneous, upon the ground, asserted by defendant, that there was substantial evidence for the consideration of the jury upon both issues, negligence of the defendant and contributory negligence of the plaintiff. Our examination of the record convinces us there was evidence for the jury on those issues, and that the judgment must be reversed.

There were four witnesses to the accident: plaintiff; defendant; Betty Gauger, who had been driving a car southerly on Fillmore toward Chestnut and had just come to a stop at the northerly crosswalk of this intersection; and Festus J. King, a pedestrian who had walked along this crosswalk from west to east, reaching the northeast curb as plaintiff left it, going in the opposite direction.

The accident happened at 10:40 in the evening of November 20, 1951. There were four lights (not signal lights), one on each corner. Plaintiff testified there was a light rain falling, it had been raining harder earlier and the streets were full of puddles. Defendant said it was raining pretty hard, it was dark, and visibility was poor. King also testified that visibility was poor.

Plaintiff testified that she waited for traffic to clear before starting across; there was no traffic in sight in any direction ; she could see back 200 feet on Chestnut, several hundred feet northerly on Fillmore, one block south on Fillmore, and about half a block westerly on Chestnut.

Plaintiff said that after leaving the curb she looked continually west while crossing, watching her footing at the same time; she was facing straight ahead, watching in all four directions for cars but probably did not look in a southerly or northerly direction. She was carrying a cane. This was [393]