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


Civ. 10967

Decided: February 27, 1939

Ingemar E. Hoberg and George J. Zech, both of San Francisco, for appellant. Hadsell, Sweet, Ingalls & Lamb, of San Francisco, for respondents.

Plaintiff sued for personal injuries, and at the close of her case the trial court granted defendants a nonsuit. The appeal raises the question of the sufficiency of the evidence to sustain the court's conclusion that the plaintiff was guilty of contributory negligence as a matter of law.

At the time of the unfortunate accident plaintiff was an elderly woman residing at an apartment house numbered 1808 Pacific avenue. She left her place of abode at about 6 o'clock p.m. of February 3, 1938, intending to cross the street to enter a grocery store. She walked a few feet westerly from the door of the apartment house, stopped at the curb to look in both directions for traffic, and then proceeded about eight feet into the street passing an automobile parked at the curb, and again stopped and looked to her left. Two eye-witnesses looking from across the street saw her then take a step backwards, and then she was hidden from their vision by defendants' automobile which was traveling westward on the avenue. The only evidence as to the point of contact is that plaintiff was struck by the right side of the front fender. She was knocked to the pavement and was found lying in a position parallel to, and eight feet distant from the curb, at the same spot where she had theretofore been seen standing. Plaintiff's witnesses all agreed that defendant Mrs. Barnett was driving at an unlawful rate of speed, that the lights on her car were lighted, and that the approach of the car could be easily seen. They also agreed that several cars were parked along both the north and south curbs, but disagreed as to their exact location. They also agreed that the car traveled in a straight line in its proper lane and did not swerve or deviate from its course until after the collision. The plaintiff wore a dark grey coat and was not seen by the operator of defendants' car until after the impact.

Giving to the plaintiff every reasonable inference which could be drawn from the facts proved, the only reasonable conclusion which any court or jury could reach is that plaintiff, after coming from behind the parked cars, saw the vehicle approaching at such a distance and at such a speed as to make it dangerous to cross in front of it. She then stepped back about a foot and stood motionless in its path until struck. She was attempting to cross the street in the middle of the block. It was her duty, of course, to yield the right of way to the vehicle. Section 562 California Vehicle Code, St.1935, p. 188. Plaintiff's evidence thus demonstrates that she stepped from a place of safety directly into the path of danger and stood there in violation of the statute which was enacted expressly to save her from such a mishap.

The facts of the case bring it within the settled rule found in Chase v. Thomas, 7 Cal.App.2d 440, 443, 46 P.2d 200; Gibb v. Cleave, 12 Cal.App.2d 468, 471, 55 P.2d 938; Meincke v. Oakland Garage, 11 Cal.2d 255, 258, 79 P.2d 91; Gaston v. Hisashi Tsuruda, 5 Cal.App.2d 639, 643, 43 P.2d 355, and similar authorities. There is no escape from the conclusion that plaintiff failed to yield the right of way, but she now argues that the statute is not applicable because the defendants were at fault in exceeding the speed limit. The argument might be good if we were testing the negligence of defendants, but this we have assumed, though it must be patent that the speed of the car was not a proximate or any cause of the collision. But, in reference to the question of plaintiff's contributory negligence, the statute is a plain and simple statement of a rule of reasonable conduct to be observed by pedestrians under these circumstances, and it is a rule made for their benefit and protection. To this subject we may quote from the recent decision in Meincke v. Oakland Garage, supra, as follows: “Where the negligence of the plaintiff consists in the violation of a statute or ordinance designed to prevent casualties of the very sort which follows, he must be held as a person of ordinary prudence to have foreseen that the violation of the law enacted to avoid the happening of such a casualty might reasonably result in the casualty's occurrence. To hold otherwise would be to largely nullify laws which are adopted for the safeguarding of the public from types of injury which are of such frequent recurrence as to lead legislative bodies to adopt regulatory measures to prevent them.” [11 Cal.2d 255, 79 P.2d 93.]

Plaintiff suggests that if the cause had been left with the jury she might have had the benefit of the last clear chance doctrine. There is no room for the application of this doctrine upon the evidence presented here. Ramsperger v. Los Angeles M.C. Co., 4 Cal.App.2d 673, 675, 41 P.2d 562; Palmer v. Tschudy, 191 Cal. 696, 700, 218 P. 36; Meincke v. Oakland Garage, supra.

The judgment is affirmed.

NOURSE, Presiding Justice.


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