Hazel v. McGrath

VALLÉE, J. Appeal by defendant from an adverse judgment entered on a jury verdict in an action for damages for personal injuries. The only question is whether the court committed prejudicial error in refusing to instruct on contributory negligence.

The action arose out of a rear-end collision which occurred about 11 a. m., October 6, 1956, at the intersection of San Fernando Road and Valencia Street in Burbank. San Fer[383]nando ran generally north and south. There were two lanes of traffic in each direction divided by a double white line. Valencia intersected San Fernando, forming a T intersection. Two pedestrian crosswalks were marked across San Fernando : one, adjacent to the north side of the intersection; the other, adjacent to the south side. The weather was clear and the street dry. There was “a sign some place out in the crosswalk saying ‘Stop for pedestrians.’ ” There was no regular boulevard stop that faced northbound traffic on San Fernando.

Plaintiff was driving a Studebaker northbound on San Fernando in the lane next to the double white line, called the inside lane. Defendant was driving a Ford northbound also in the inside lane. The front of defendant’s car collided with the rear of plaintiff’s car as the latter was standing at the southerly edge of the southerly crosswalk.

Plaintiff testified: He had driven an automobile about 30 years. The brakes on his ear were good. His car had two stop lights in the rear and the regular rear taillights. When he stepped on the brakes the lights went on; they were in operating condition. He approached the intersection in the inside lane at about 25 miles an hour and an unidentified automobile was in the lane to his right, called the outside lane. This car was about 125 feet north of his car. When the car to his right was about 50 to 75 feet south of Valencia it began to reduce its speed. When he saw it begin to reduce its speed he immediately took his foot off the gas pedal and put it on the brake pedal. At that time he was 175 to 200 feet south of Valencia. He did not apply pressure to the brake immediately but kept his foot on it until he found out why he was stopping. “He slowed up almost to a stop near the corner when I seen a pedestrian step off the curb and then I put on my brakes full. ’ ’ At that time he was about 100 feet to the rear of the car in the lane to his right. He does not recall looking behind him at any time as he was gradually slowing down. He believes he gave a hand signal, “it just comes automatically,’’ but he cannot swear to it; it is a habit he is kind of ‘ ‘ religious ’ ’ about. He continued forward and stopped just “short of the crosswalk. ’ ’ He stopped in 100 to 125 feet. He made a moderate, even stop. He did not skid at any time. “Q. Did you feel the nose of your car dip at all as you were stopping? A. Almost every time I stop my car, the nose goes down. Q. There is a dipping? A. Yes. Q. Did you feel it go back up before the impact occurred? A. Yes. . . . Q. And what occurred then while you were just stopped in that position?