STRICKLIN v. ROSEMEYER ET AL

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District Court of Appeal, First District, Division 2, California.

STRICKLIN v. ROSEMEYER ET AL.*

Civ. 11807.

Decided: March 16, 1942

Maurice C. Ryan, of San Francisco, for appellant. Cyril Appel and Ivores R. Dains, both of San Francisco, for respondents.

Plaintiff received personal injuries as a result of being struck by a trolley bus operated by defendants. From a judgment for defendants entered pursuant to the verdict of a jury plaintiff prosecutes this appeal. The testimony was in sharp conflict as to the manner in which the collision resulting in plaintiff's injuries occurred. Plaintiff had parked his automobile in front of his home on the southerly side of Eighteenth Street in San Francisco between Douglass and Eureka Streets. While he was about to alight from the left door of his automobile into the street the trolley bus which was proceeding easterly on Eighteenth Street struck him and his automobile.

The testimony most favorable to plaintiff was that the operator of the trolley bus was looking down making change for a passenger with the front doors of the trolley bus open and extending beyond the side of the bus and that the open doors first struck the rear of plaintiff's parked automobile and then grazed along its side striking plaintiff. Plaintiff had looked in his rear view mirror and seen no vehicle approaching, had looked out the left window of his automobile and likewise seen no vehicle. He then partly opened the left door, put one or both feet on the running board, leaned his head and shoulders out of the car to look for approaching traffic from the rear, saw the doors of the trolley bus almost instantly strike the rear of his automobile and a moment later was struck himself. It is undisputed that plaintiff had earlier, while making a U–turn at Douglass Street, seen the trolley bus and knew that it was proceeding generally in his direction on Eighteenth Street.

According to the evidence most favorable to defendants the trolley bus was passing plaintiff's parked car with a clearance of at least eighteen inches when plaintiff suddenly threw open the left door of his automobile, which when fully opened extended 22 1/2 inches beyond the side of his automobile, and the front corner post of the trolley bus almost instantly struck the extended door.

The evidence was substantial to support either set of facts, and if plaintiff and his witnesses were believed by the jury a verdict in his favor would have found ample support in the evidence.

Defendants introduced into evidence a portion of section 20 of article III of the Traffic Code of the City and County of San Francisco reading as follows: “It shall be unlawful for any person to be in any roadway other than a safety zone or cross–walk; provided that this provision shall not be construed to prevent the necessary use of a roadway by a pedestrian.”

The court correctly instructed the jury that: “It is the law that a violation of a statute or ordinance constitutes negligence as a matter of law.”

It is to be observed that plaintiff was not in the roadway at the time when he was struck and it cannot be successfully contended that he was at that time violating any provision of the section of the traffic code which we have quoted. The matter might be considered unimportant but for an incident which occurred after the jurors had retired to deliberate. They returned to the court room seeking further instructions at which time the record shows the following colloquy:

“Juror John M. Nelson: I would like to ask one question: Is it against the law to walk out of the left side of the automobile?

“The Court: Well, I have given you all the instructions on that point that I feel apply to this case. I have given you instructions defining negligence and contributory negligence and I don't want to add anything further to what has been said on that.”

Thereupon at the request of another juror the general instructions on contributory negligence were read to the jury and the jury retired. The case was not only close on the evidence but apparently close in the minds of the jurors since the verdict finally returned was shown upon the polling of the jury to have been reached by a vote of 9 to 3.

Appellant cites and relies upon Brooks v. City of Monterey, 106 Cal.App. 649, 290 P. 540, to support his contention that it was error for the court to refuse to answer the question of the juror Nelson. The case is distinguishable in that counsel for plaintiff in the case before us at the time the court refused to answer the question remained silent, made no objection and at that time proposed no form of instruction to be given in answer to the juror's query. In the Brooks case the opinion shows that counsel for the plaintiff requested the court to give an instruction framed by himself and, the court having refused to give any answer to the jury's inquiry because it was after noon on Saturday and he erroneously concluded that he had no right to give additional instructions on a non–judicial day, moved for a continuance to the following Monday. We have been cited to no case where it was held reversible error to refuse a request from a jury for further instructions in which counsel was afforded the opportunity to propose such an instruction and failed to do so. For example in Futoransky v. Nassau Electric R. Co., 169 App.Div. 719, 155 N.Y.S. 734, cited by appellant, counsel in that case at the time of the inquiry requested a proper instruction on the subject of the juror's question which the court refused to give, and the same thing occurred in Stevenson v. New York Contracting Co.–Pennsylvania Terminal, 137 App.Div. 742, 122 N.Y.S. 726, cited in the Futoransky case. In the absence of any request for the giving of an instruction at the time when the question was asked particularly when coupled with the failure to make any objection to the conduct of the court, we are inclined to the view that appellant must be held to have waived his right to complain of the court's refusal to instruct the jury upon that subject at that time.

This conclusion, however, does not dispose of the entire question. Appellant among his instructions originally proposed included the following which the court refused to give: “The plaintiff Charles Stricklin, is not to be charged with negligence merely because he alighted by the northerly door of his automobile. I instruct you that the standard of care required of the plaintiff in this action is ordinary care as will later be defined. It is the care an ordinary person of ordinary prudence would use under all the circumstances of the situation, and if you find that the plaintiff did use ordinary care in alighting from his automobile, I instruct you that the plaintiff had a right to alight therefrom by the northerly door.”

Setting aside for a moment the possible effect of the section of the San Francisco Traffic Code above quoted, the proposed instruction was a correct statement of the law. It is not negligence per se in the absence of a statutory prohibition to alight from the left side of an automobile into the street. Lewis v. Memmler, 140 Cal.App. 364, 35 P.2d 406. It follows that, unless the section of the Traffic Code prohibits it, appellant was entitled to have the jury instructed that one has a right to alight into the street from the left door of an automobile providing he exercised ordinary care in doing so.

Turning to the section of the Traffic Code in question it is apparent that it is not a model of legislative craftsmanship. It takes with one hand and gives back to an uncertain degree with the other. The first clause is an absolute prohibition to be in a roadway except in a safety zone or cross–walk. The proviso makes a further exception in the case of “the necessary use of a roadway by a pedestrian.” The record in this case fails to show whether the ordinance in other parts gives any definition of the “necessary use of a roadway.” In Quinn v. Rosenfeld, 15 Cal.2d 486, 102 P.2d 317, our Supreme Court had under consideration the legal effect of the identical section. It was held in that case that the section did not prohibit a pedestrian crossing the roadway outside of a cross–walk. Further than that the Supreme Court was not called upon to construe the section in that case. In our case the plaintiff admittedly was not intending to cross the roadway but to walk around his car to the sidewalk. But in alighting from his car and until he started to walk around it he would be in no different position than if he had intended to cross the street at right angles to the curb. Under the decision of the Supreme Court in Quinn v. Rosenfeld, supra, plaintiff if otherwise exercising due care would be entitled to alight from his car by the left door and walk across the street at right angles to the curb. He therefore was not prohibited by the Traffic Code from alighting by the left door into the street. Let us suppose that A alights from the left rear door of a parked automobile intending to cross the street at the same moment that B alights from the left front door of the same automobile intending to walk around the car to the sidewalk. If they are both struck by C's automobile negligently swerving into them before either has taken a step could it be said that A is not and B is guilty of negligence per se?

We pass the serious question of the validity of this section of the Traffic Code suggested, but not decided, in Quinn v. Rosenfeld, supra, as not necessary to the decision of this case. We are satisfied that in attempting to alight from the left door of his automobile plaintiff was not rendered guilty of negligence per se by the provision of the Traffic Code here in question. The section of the Traffic Code having been introduced plaintiff was entitled to a proper instruction as to its legal effect and, in view of the closeness of the case, the doubt in the minds of the jurors shown by the juror Nelson's question, and the closeness of the vote of the jurors in arriving at their verdict, it was prejudicial error to refuse to give the instruction proposed by appellant.

Respondents argue that in any event appellant's conduct in attempting to alight from his car knowing that the trolley bus was approaching was negligence as a matter of law. We cannot hold that opening the door of his automobile just far enough to get his feet on the running board and then leaning his head and shoulders far enough out to look back for approaching traffic (and this was appellant's testimony) is negligence as a matter of law. It would present, at most, a question of fact as to whether in so acting appellant was using ordinary care and prudence. Murphy v. St. Claire Brewing Co., 41 Cal.App.2d 535, 539, 107 P.2d 273.

The court gave the following instruction: “A trolley coach cannot go upon the street or highway except upon that part or portion of the street or highway where the trolleys attached to the coach can remain in contact with the overhead wires supplying the electric energy necessary to operate the coach, and hence it has the better right to that space or part of the highway where it must necessarily be operated, to which others must yield when necessary.”

The operator of the trolley bus testified that it could be driven beyond the center of the street. It stopped within three feet of the curb to take on passengers at Douglass Street. It is thus clear that on the side of the street on which it had a legal right to operate it was as mobile laterally as any ordinary vehicle. The instruction is based upon a rule of law applicable to street railway cars which can only operate upon fixed tracks and gives a better right to the space covered by the tracks for that reason. 23 Cal.Jur. p. 866. It can have no application to a vehicle which can be driven at any point from the curb to the middle of the street. The instruction gave a right to defendants and put a burden upon plaintiff which was not justified by the circumstances.

For the reasons given herein the judgment appealed from is reversed.

DOOLING, Justice pro tem.

NOURSE, P. J., and STURTEVANT, J., concurred.