Gray v. Brinkerhoff , 41 Cal. 2d 180 ( 1953 )

SCHAUER, J.

Plaintiffs, who are husband and wife, appeal from an adverse judgment entered upon a jury verdict in their action for damages for personal injuries suffered by the wife when she was struck by a pickup truck driven by defendant Brinkerhoff in the course of his employment by defendant Nitzen. We have concluded that the evidence establishes negligence as a matter of law on the part of Brinkerhoff and is insufficient to support a finding of contributory negligence on the part of the wife, and that the judgment must therefore be reversed. Hereinafter in this opinion plaintiff-wife will be referred to as plaintiff, and Brinkerhoff will be referred to as defendant.

The evidence is without substantial conflict. At the time of the accident, plaintiff, carrying a bag of groceries, was attempting to walk across Manchester Boulevard, which runs in an east-west direction, at its intersection with Airport Boulevard, which runs north-south, in Los Angeles. Plaintiff waited on the curb at the southeast corner of the intersection until the traffic light changed from red to green for north-south traffic on Airport, so that she could lawfully proceed north across Manchester in the marked pedestrian crosswalk. The crosswalk was some 15 feet wide, and the distance from the curb, where plaintiff was standing, to an island located down the center of Manchester was about 30 feet. Defendant, who was driving south on Airport in a pickup truck, had stopped at the northwest corner of the intersection, also waiting for the green light ; he was in the lane next to the center of Airport, as he intended to make a left turn onto Manchester. When the light changed to green, plaintiff started walking across Manchester in the crosswalk, and defendant started his truck, signaled his intention to make a left turn, and proceeded into the intersection. When he was about halfway across Manchester and before making his left turn, defendant again stopped his truck to permit another car, which was going north on Airport, to continue through the intersection. The other car, however, made a right turn into Manchester, and defendant then started his truck again, made his left turn, and drove into the crosswalk, striking plaintiff’s shoulder with a “rack” attached over the left front fender of the truck, “pushing” her out of the crosswalk, and injuring her.

Plaintiff, while still waiting on the curb for the light to turn green, observed defendant’s truck stopped at the intersection in the lane next to the center line of Airport, saw the truck start to move toward the south when the signal changed and plaintiff started north across Manchester, and watched its progress into the intersection. When plaintiff had gone about 10 feet from the curb, the truck was approaching the center of the intersection. When it reached the center of the intersection it was going about 5 miles an hour, and plaintiff realized at that time that it was going to make a left turn. When the truck, after stopping for the approaching car, had started again and was about 15 feet from the crosswalk plaintiff was some 10 feet from the island, walking “Approximately in the middle” of the crosswalk. When plaintiff was a step or two from the island the truck, which both plaintiff and defendant testified was then going at a speed of 8 or 10 miles an hour, struck her. The truck moved 7 or 8 feet further ahead and then stopped. Plaintiff when first struck dropped her bag of groceries, seized hold of the rack above the fender in order not to be thrown under the truck, and receive repeated blows to her knees and shoulder as she “was being pushed back’’ out of the crosswalk. The weather and the street were dry and it was clear daylight at the time.

Plaintiff testified that she had been watching the truck almost continuously during her progress across the intersection ; through the truck’s windshield she saw both defendant driver and a coemploye who was riding with him and they seemed “to be looking in” her direction ; when she “first realized that the truck was coming on the crosswalk . . . I tried to hurry to the island in the middle,” although she did not run ; she then had “perhaps a second” to “get out of the way” ; she was then “about five feet” from the island; “I was in plain sight and . . . he looked like he would pass right behind me . . . [TJhere wasn’t room for him to go in front of me by that time.”

Defendant testified that his windshield was clear; he did not see plaintiff at any time until after his “truck had actually impacted her, ’ ’ and he saw no other people in the crosswalk; after he stopped in the center of the intersection for the oncoming car, he was “looking east on Manchester” as he approached the crosswalk; there was nothing that would obstruct his view except the corner post on the truck as he was in the swing of the left turn; his brakes were in good condition.

Whether or not defendant was guilty of negligence (see Toschi v. Christian (1944), 24 Cal.2d 354, 360 [149 P.2d 848] ; Mosley v. Arden Farms Co. (1945), 26 Cal.2d 213, 217 [157 P.2d 372, 158 A.L.R. 872] ; Polk v. City of Los Angeles (1945), 26 Cal.2d 519, 530 [159 P.2d 931] ; 19 Cal.Jur. 731, and cases there cited) or plaintiff was guilty of contributory negligence (Pewitt v. Riley (1945), 27 Cal.2d 310, 316 [163 P.2d 873] ; Anthony v. Robbie (1945), 25 Cal.2d 814, 818 [155 P.2d 826], and cases there cited ; see, also, 19 Cal.Jur. 735-738) is ordinarily a question of mixed fact and law and may be determined as a matter of law only if reasonable men following the law can draw but one conclusion from the evidence presented. (See, also, Zibbell v. Southern Pac. Co. (1911), 160 Cal. 237, 241 [116 P. 513] ; Reaugh v. Cudahy Packing Co. (1922), 189 Cal. 335, 343 [208 P. 125] ; Young v. Southern Pac. Co. (1920), 182 Cal. 369, 375 [190 P. 36] ; Dennis v. Gonzales (1949), 91 Cal.App.2d 203, 209 [205 P.2d 55].)

It is our view that defendant’s own testimony shows indubitably that he was guilty of negligence proximately causing plaintiff’s injuries. By the provisions of section 560, subdivision (a), of the Vehicle Code, “The driver of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk. . . . ” It is undisputed that defendant did not yield the right of way to plaintiff. Such failure constitutes a violation of the statute and negligence as a matter of law in the absence of reasonable explanation for defendant’s conduct. (See Satterlee v. Orange Glen School Dist. (1947), 29 Cal.2d 581, 589 [177 P.2d 279] ; Ornales v. Wigger (1950), 35 Cal.2d 474, 477-480 [218 P.2d 531] ; Finney v. Wierman (1942), 52 Cal.App.2d 282, 284 [126 P.2d 143] ; Lafrenz v. Stoddard (1942), 50 Cal.App.2d 1, 4 [122 P.2d 374].)

Defendant in attempted excuse of his conduct suggests that his “attention was diverted” by the “fast approaching car” which made a right turn into Manchester instead of continuing north on Airport as defendant had expected it to do. However, that vehicle after turning to the right obviously constituted no hazard to defendant, who had stopped in the center of the intersection to allow it to pass, and provides no excuse whatsoever for his thereafter starting his truck again, driving into the crosswalk without seeing pedestrians who might be there, and striking plaintiff. For a driver to cause or allow his vehicle to continue into and across such a crosswalk while his attention is so “diverted” constitutes in itself a violation of the statute for which he must be held responsible.

Defendant suggests further that although his attention was “diverted,” nevertheless “while in his turn, the left front corner post on the truck probably obscured his seeing” plaintiff. Again, we are not impressed with this tentative offering of an excuse. Under the circumstances shown it appears to us that the evidence does not reasonably admit of any conclusion other than that defendant could have fulfilled his duty to look for pedestrians and could have seen plaintiff if he had exercised ordinary care. He had no right to assume that the crosswalk was clear (People v. Lett (1947), 77 Cal.App.2d 917, 919 [177 P.2d 47]) ; it was his duty in starting up and driving his vehicle into and through the crosswalk to ascertain whether plainly visible pedestrians were using such crosswalk and it was his obligation to yield the right of way to them (Fischer v. Keen (1941), 43 Cal. App.2d 244, 249 [110 P.2d 693]). We hold that the evidence establishes that defendant was negligent as a matter of law.

It is equally apparent that plaintiff was free from negligence proximately contributing to her injuries. She was lawfully where pedestrians are expected to be found at intersections and until “perhaps a second” before the impact she had no reason to believe that defendant intended to violate her right of way and proceed into the crosswalk and against her body. Under such circumstances, she was not allowed sufficient time, and it does not appear that she was required, to “run”¹ from his vehicle, as defendant (apparently seeking to invoke a sort of reverse last clear chance doctrine) suggests she should have done, although she did make an effort “to hurry to the island in the middle.”

Defendant relies on the rule that “Whether a mistake in judgment by a pedestrian when crossing a street, as to the speed and danger of an approaching vehicle constitutes contributory negligence is a question for the jury.” (Kirk v. Los Angeles Ry. Corp. (1945), 26 Cal.2d 833, 839 [161 P.2d 673, 164 A.L.R. 1].) In the cited case the traffic signal changed after plaintiff pedestrian had started across the intersection ; plaintiff's companions reached the far curb safely but plaintiff while hurrying to do the same dropped her purse and was struck by a streetcar when she stopped to pick it up. The judgment of nonsuit was reversed by this court with the statement that the matter of contributory negligence should have gone to the jury. In the case now presented, however, the only relevant mistake which plaintiff could have made as to the speed and danger of the approaching vehicle would be the belief that defendant driver intended to obey the law and not turn into and across the pedestrian crosswalk and strike her in complete disregard of her right of way. Defendant’s vehicle, which had come to a complete stop in the center of the intersection and after starting again had at no time exceeded a speed of 8 to 10 miles an hour, obviously would give a reasonable pedestrian lawfully in the crosswalk no cause for apprehension that the speed of the vehicle constituted such an imminent danger that she should run from it. Under such circumstances we find no merit in defendant’s argument that inasmuch as plaintiff had observed the truck from the time it left the center of the intersection until it struck her, her failure to increase her speed until “perhaps a second” before he pushed her out of the crosswalk could be considered to be contributory negligence. (See LeBlanc v. Browne (1947), 78 Cal.App.2d 63, 71-75 [177 P.2d 347].) Under the circumstances shown here, plaintiff had the right to assume that defendant driver would obey the law, drive in a reasonable manner, observe her right of way, and yield it. (See Schulman v. Los Angeles Ry. Corp. (1941), 44 Cal.App.2d 122, 126 [111 P.2d 924] ; Foerster v. Direito (1946), 75 Cal. App.2d 323, 330-331 [170 P.2d 986] ; Ladas v. Johnson’s B. & W. Taxicab Co. (1941), 43 Cal.App.2d 223, 228 [110 P.2d 449].)

By reason of our conclusion that the evidence is insufficient to support the verdict, it becomes unnecessary to consider plaintiff’s further contention that certain of the instructions given to the jury prejudically overemphasized her duty and minimized that of defendant.

The judgment is reversed.

Gibson, C. J., Shenk, J., Traynor, J., and Spence, J., concurred.

1 It may be noted that there are traffic signs in some localities which expressly direct pedestrians to “Walk” and do not suggest “Run.”