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District Court of Appeal, Second District, Division 1, California.


Civ. 10263.

Decided: July 08, 1936

Moses C. Davis, of Los Angeles, for appellant. Walter S. Coen and Donald E. Ruppe, both of Los Angeles (Horace W. Danforth, of Los Angeles, of counsel), for respondents.

An action was brought by plaintiff against defendants to recover a judgment for damages alleged to have been sustained by plaintiff by reason of the unlawful death of her husband, which occurred as the result of a collision between him personally and an automobile that was assumed to have been owned by defendants Mr. and Mrs. Marshall, and which at the time of the accident was driven by the defendant Marion C. Marshall. From a judgment that was rendered in favor of defendants pursuant to a directed verdict, as well as from an order by which her motion for a new trial was denied, plaintiff has appealed to this court.

The accident occurred near, but not immediately at, an intersection of two streets. Although just prior to the happening of the accident, the husband of plaintiff was seen to leave the sidewalk of one of the intersecting streets and thereupon to walk to a point near its center, from such point to that where he was struck by the automobile with which he collided, no one saw plaintiff's husband until just at the instant when the collision occurred.

In the premises, and considering the issue here presented with reference to the correctness of the order made by the trial court by which the jury was directed to render its verdict in favor of defendants, it is apparent that (for the moment excluding as immaterial thereto any question of the possible negligence of the defendants) the determination of the question of whether, at the time when the accident occurred, plaintiff's husband was exercising due care for his own safety depends largely, if not entirely, upon the proper application of the facts to the provisions of subdivision 4 of section 1963 of the Code of Civil Procedure, in substance, that in circumstances such as were presented in the instant case, the presumption obtains that plaintiff's husband was taking “ordinary care of his own concerns.”

In the case of Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529, 532, which generally is regarded as the leading authority in this state on the point to which attention is herein directed, in circumstances analogous to those which appear in the instant case, in that the person who was killed met his death while riding as a guest on a truck that was struck by a railroad train at a street crossing, it was held, not only that the presumption obtained that the person who was killed “took ordinary care of his own concerns,” but as well, that such presumption constituted evidence that entitled the case to go to the jury for its determination of the issue of whether the said person had exercised ordinary care in the premises, notwithstanding the existence in the evidence of testimony adduced on the cross–examination of the driver of the truck, who was introduced as one of the plaintiff's witnesses therein, to the effect that after the truck had waited at the railroad crossing for one train to pass the intersection on a side track, and just before the truck had been started in motion in an attempt to cross the main railroad track, the person who was killed and who immediately theretofore had been seated by the side of the driver of the truck, said, “It's all clear; let's go.” Also that, in accord with the ruling announced in the case of Mar Shee v. Maryland Assurance Corp., 190 Cal. 1, 210 P. 269, 273, it is decided in the cited case that the said presumption neither “fades out,” disappears, nor vanishes from the case because its effect is contradicted or controverted by other evidence, unless such adverse evidence be introduced by the party who relies upon such presumption, and then only when such inconsistent evidence is “wholly irreconcilable with the presumption sought to be invoked.”

With so much in mind, an examination of the more important items of evidence adduced on behalf of plaintiff in the instant case, which is contended by the respondents herein to have had the effect of eliminating from the case the presumption as a fact in evidence, may not be inappropriate. For the purpose only of consideration of the asserted vital conflict in plaintiff's evidence, it may be assumed that, at least in part, instead of attempting to cross the intersecting street at a right angle to the sidewalk thereof, plaintiff's husband walked on a “diagonal line” with his back partly turned to approaching vehicular traffic, which at that time was “just about medium”; that the street was well lighted; that immediately preceding the happening of the accident plaintiff's husband had consumed a portion of about one–third of a “pitcher” of beer; and that he was “kind of angry” and exhibited a “don't care” attitude; and that when he first stepped off the sidewalk he was nearly struck by another automobile that was passing that point, at which time he “wobbled one or two steps.”

Considering such evidence as constituting a conflict with the presumption of due care on the part of plaintiff's husband, and comparing it with the evidence that was adduced in the similar case to which reference hereinbefore has been had, as well as to the facts in other cases to which attention has been directed by the respective parties herein, this court is impelled to the conclusion that the “conflicting” evidence in the instant case was not of that force from which, as a matter of law, it would follow that the presumption in question was thereby completely dispelled or destroyed. To the contrary, although the original force of the presumption may have been weakened by reason of the effect produced thereon by the evidence that conflicted therewith, nevertheless the presumption remained in the case as an evidentiary fact. Whether it should be accepted as determinative of the issue, or whether in that regard the “conflicting” evidence had utterly destroyed the evidence created by the presumption, presented questions that, under the circumstances presented herein, could not be determined as matters of law, but were problems that properly might be solved by the jury only.

It follows that the judgment should be reversed. It is so ordered. It is further ordered that the appeal from the order by which plaintiff's motion for new trial was denied be, and it is, dismissed.

HOUSER, Presiding Justice.

I concur: DORAN, J. I dissent: YORK, J.

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