Kalfus v. Fraze

SHINN, P. J. This is an action for damages for personal injuries suffered by a pedestrian when struck by an automobile. The jury returned a verdict for defendant. Defendant appeals from an order granting plaintiff’s motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict. On appeal from such order, the issue is whether there was evidence which would have sustained a judgment in favor of the moving party. (Gallardo v. Luke, 33 Cal.App.2d 230 [91 P.2d 211] ; Nicholas v. Leslie, 7 Cal.App.2d 590 [46 P.2d 761].) We have only to determine whether there was evidence which would sustain findings that defendant was negligent and that plaintiff was free of contributory negligence. Defendant’s argument is essentially a request that this court reweigh the evidence, and accept as established those facts testified to by his own witnesses which were most favorable to his defense, in disregard of the fact that our jurisdiction on appeal is limited to the review of questions of law.

Plaintiff was struck by the automobile of defendant as she was crossing Glendale Avenue at Doran Street in the city of Glendale, at about 5:15 p. m„ December 6, 1951. Doran Street west of Glendale Avenue is 36 feet wide. Glendale Avenue is 58 feet wide. Doran Street east of Glendale Avenue is 30 feet wide and jogs about 35 feet to the south. The northern marked pedestrian crosswalk, which connects the northeast corner of the intersection with the northwest corner, extends northwesterly and southeasterly, with the western end about 25 feet north of the eastern end. On the east side of Glendale Avenue to the north of the intersection there is a food market, one exit of which is some 30 feet north of the above-described crosswalk. At the time of the accident it was dusk, and the street lights had been turned on. Plaintiff was walking across Glendale Avenue toward the northwest corner of the intersection. It was disputed whether she was within the crosswalk or crossing to the north of it. Defendant was traveling east on Doran Street at a moderate speed, with his headlights turned on. As he reached the intersection the traffic signal governing traffic on Doran Street was green, and he rounded the corner and turned north on Glendale Avenue. He had completed or nearly completed the turn when the right front portion of his automobile struck the plaintiff, knocking her an undetermined distance northward. When defendant brought his car to a halt it was on the east side [101]of the center line of Glendale Avenue, facing north, with the right front portion about 16 to 20 feet north of the crosswalk.