Clark v. Vieroth

BRAY, J. Plaintiff appeals from a judgment on a jury verdict in favor of defendant in an action for personal injuries sustained when plaintiff was struck by defendant’s car.1

Questions Presented

1. Alleged error in excluding evidence to show plaintiff’s lack of familiarity with changes at the street intersection.

2. Refusal to instruct on difference between burden of proof in civil and criminal eases.

3. Alleged error in last clear chance instructions.

4. Alleged misconduct of defendant’s counsel.

Facts

Plaintiff, a woman 64 years old, dressed in a powder blue coat and using a cane, was- crossing Van Ness Avenue between Market and Fell Streets, San Francisco, about 12:30 a. m. She testified that she never saw the car which struck her and that she was crossing in the marked crosswalk at Market and Van Ness Avenue. However, a police officer who saw the accident testified that she was crossing Van Ness approximately 40 feet north of that crosswalk. In the center of the street there is a concrete island extending from Market to Fell. When plaintiff had approached within 3 to 6 feet of that island, she was struck by a car driven by defendant, a man 75 years of age, suffering from an optical disability in one eye. He did not see her until she stepped in front of him, although his ear lights were on and the area was well lit. He claimed that she suddenly came out in front of a moving car proceeding alongside him on his right. The officer testified there were no other vehicles near defendant’s. After the accident defendant told him that he thought plaintiff had stepped off the island to his left. (She actually came from his right.) Plaintiff contends that the sole proximate cause of the accident was defendant’s failure to see plaintiff or to stop after seeing her. However, it is obvious that plaintiff’s conduct in crossing a well traveled street outside a marked crosswalk at that hour at night without observing defendant’s [464]oncoming car could have been found by the jury (and it evidently was so found) to be at least a proximate cause of the accident.2

1. Exclusion of Testimony.

On direct examination by plaintiff, the police officer testified that the concrete island in the center of Van Ness Avenue had been constructed in 1952.3 The court sustained defendant’s objection to plaintiff’s question, evidently intended to show that prior to 1952 there had been a marked crosswalk at about the place where plaintiff was crossing this night. Later, in chambers, plaintiff offered to prove4 that prior to the accident she had been away from San Francisco for approximately two years, and that when she formerly was in San Francisco there was a marked crosswalk at the place of the accident. The court ruled this evidence inadmissible. Plaintiff contends that this evidence could have been considered by the jury as an excuse for plaintiff’s violation of the city ordinance which prohibited pedestrians crossing the street at any place except in a marked crosswalk, where such crosswalk exists, a violation of which ordinance the court instructed the jury would raise a rebuttable presumption of negligence per se.5 No one has the right to assume that the layout of crosswalks in a street will always be the same, any more than to assume that a street open to two-way traffic today will not become a one-way traffic street tomorrow. Therefore, no one has the right to assume without looking that the crosswalk situation at a particular place is the same today as it was previously, particularly as it was more than a year past. Failing to observe the change because of an absence from the city over a period of time could not possibly be an excuse for violating the ordinance requiring the use of the crosswalk. Moreover, here, the plaintiff was not excusing her conduct on the ground that she was crossing where she formerly knew a