Mishkin v. Sanvidotti

PETERS, P. J. Plaintiff, a pedestrian, was hit by, or ran into, a ear driven by the defendant Romano Sanvidotti. The jury brought in a defendant’s verdict. The plaintiff appeals from the judgment entered on that verdict. She challenges the sufficiency of the evidence, and contends that the trial court committed reversible error when it refused to give a proffered instruction. Both contentions lack merit.

The case is a typical fact case in which the evidence, as to causation, was sharply conflicting. Plaintiff, on January 21, 1951, the date of the accident, was employed at the Casa Mateo Inn, which is located in San Mateo on the east side of Bayshore Highway, and south of the intersection of Bay-shore and Indian Avenue. Indian Avenue runs into Bay-shore but does not cross it. Bayshore, at the time of the accident, had two marked northbound and two marked southbound lanes. Plaintiff left her place of employment on the day in question, in the company of Anna Droz, another Inn employee. It was their custom to take a northbound bus to their homes in San Francisco. This bus ran infrequently, and, if they missed it, they would cross the highway and walk over to nearby Poplar Street and catch a bus there.

On this particular day they apparently missed the bus on Bayshore. Plaintiff testified that, after waiting a substantial period, she decided to cross the highway from east to west in order to catch the Poplar Street bus. It was now raining, and, while crossing Bayshore, plaintiff carried a newspaper in her right hand and held it over her head. She testified that she crossed the northbound lanes, looking to her left. When she reached the double dividing line she stopped because [513]a southbound car, with its lights on, was approaching from the north. That car stopped to allow her to pass. It was in the fast lane. Plaintiff said that she then crossed the two southbound lanes, keeping a lookout to her right for southbound traffic. She testified that while crossing the southbound lanes she noticed a broken bottle on the shoulder of the highway, and was somewhat fearful of falling down. She did not run, but walked across the two southbound lanes. She had completely crossed those two lanes and had reached the west shoulder of the highway and was just taking a step off the shoulder when she was hit in the back by the car driven by Romano Sanvidotti.

This story was contradicted, in its most important details, by Romano and his witnesses. Romano testified that on the day in question, accompanied by his wife and their three children and by his mother-in-law, he left his home in San Bruno and was driving south on Bayshore, in his right, or the slow lane, at about 40 miles per hour. At about Millbrae it started to rain. He did not have his headlights on, nor did any other vehicle on the highway, because it was light and the visibility was good. He was looking straight ahead. He first saw the plaintiff when she was seven or eight feet to his left in the fast southbound lane, and when his car was six to eight feet from the point of contact. She was running fast, was shielding her head with some object, and was looking straight ahead and down. She ran into the side of his ear. He did not sound his horn, put on his brakes, or swerve because he did not have time to do so, the impact occurring a split second after he first saw the plaintiff.