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


Civ. 9231.

Decided: February 20, 1935

Ford & Johnson, of San Francisco, and Loyd Wright, of Los Angeles, for appellant. Frank Karr, E. E. Morris, C. W. Cornell, and O. O. Collins, all of Los Angeles, for respondents.

Plaintiff, a pedestrian, sued to recover damages for injuries incurred when she was involved in an accident with a motor coach owned by corporation defendants and operated by the other defendants, their employees. Following the accident she became incompetent, due, it is asserted, to injuries then inflicted. At conclusion of plaintiff's case, motion for nonsuit was granted on grounds that the evidence failed to show negligence of defendants and did disclose contributory negligence as a matter of law on the part of plaintiff. From judgment entered thereon, plaintiff appeals.

The accident occurred near the southeast corner of Wilshire and Westwood boulevards at about 6 o'clock in the evening of the 19th of December. Defendants' bus had been going south on Westwood and had stopped for a traffic signal at the intersection of Wilshire. When the signal said “Go,” the bus turned left to go south on Wilshire, proceeding at about 10 to 15 miles an hour, and may have swerved sharply to the right just before the moment of impact, which occurred at a point in the south half of Wilshire and from 10 to 15 feet east of the prolongation of the sidewalk lines on the east side of Westwood. After the impact, the bus came to a stop within 6 or 8 feet. Plaintiff, dressed in dark clothing, had set out to cross Wilshire, going from the northeast corner south across the street along a line from 10 to 15 feet east of the sidewalk line. The street lights were somewhat obscured by holiday decorations; the bus had its headlights on, was lighted inside, and made quite a bit of noise. Plaintiff was hurrying as she left the curb to go south, slowed up about the middle of Wilshire, glanced to the right so that the approaching bus would have been within her line of vision and from 25 to 50 feet away, started to run south on the course as above described, and came in contact with the side of the front end of the left front fender, falling down by the side of the bus wheel.

Under the facts, especially in view of the provisions of section 131 1/212 of the California Vehicle Act (St. 1923, p. 517, as added by St. 1931, p. 2127), it appears that the motion for nonsuit was properly granted.

Appellant suggests that the bus should have passed to the right of the exact center of the intersection. Section 129 of the California Vehicle Act (St. 1923, p. 558, as amended by St. 1929, p. 541), which makes such a requirement, excepts a case where other “turning markers” are provided, such as appear in this case as indicated by the diagram in evidence and some fragments of testimony. The course followed by the bus in making the turn, even if it were too gradual a curve, could not be said to have been a proximate cause of the accident.

The doctrine of last clear chance is finally relied upon by appellant. This doctrine does not apply where both parties are contemporaneously and actively in fault down to the very moment of the injury, such fault proximately contributing to the collision, as in this case, and cannot be invoked in support of plaintiff's case. Palmer v. Tschudy, 191 Cal. 696, 218 P. 36.

Judgment affirmed.

SCOTT, Justice pro tem.

We concur: STEPHENS, P. J; CRAIL, J.

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