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


Civ. 11064

Decided: October 26, 1939

Cooley, Crowley & Supple, of San Francisco, for appellant. James C. Purcell and William E. Ferriter, both of San Francisco, for respondent.

This action was brought by plaintiff to recover damages for injuries sustained in an automobile accident. It was tried by the court sitting without a jury. Later the court made findings in favor of plaintiff and from the judgment entered thereon the defendant has appealed. He contends that the judgment is not sustained by the findings, that the finding that the defendant was negligent is not sustained by the evidence, and that the finding that the plaintiff was not guilty of contributory negligence is not sustained by the evidence and is directly contrary thereto.

At the time of the accident complained of the plaintiff was a fireman attached to Five Truck and Two Chemical of the San Francisco Fire Department. The firehouse is on the north side of Geary street, which runs east and west. The block is bounded on the west by Divisadero street and on the east by Scott. Geary is an arterial highway and each of the crossings is marked by stop signs and each has crosswalks duly marked. The locality is a residence district. There was no crosswalk in between Divisadero and Scott streets. The plaintiff left the firehouse and entered Geary street with the intention of going to a grocery store located on the southeast corner of Divisadero and Geary. He could have gone to Divisadero and crossed over on the marked pedestrian lanes to the store. The record contains no evidence showing it was “necessary” for him to use, but he did use, the street. After he had reached the north rail of the Geary street car tracks he paused to let an automobile, which was traveling forty miles per hour, pass in front of him. Before he could proceed on his course the defendant's car approached from the left, swerved slightly to its left, hit the plaintiff, and knocked him down. No evidence was offered which would have authorized the trial court to apply the last clear chance doctrine. In the view we take of the case it will not be necessary to discuss anything but the defendant's last point.

That point involves solely the question whether the case is controlled by the provisions of the Vehicle Code, St.1935, p. 93, or by the provisions of paragraph 3 of section 10 of ordinance No. 7691 (new series) of the city and county of San Francisco. Over the objection of the plaintiff the trial court admitted said paragraph in evidence. Said paragraph is as follows: “It shall be unlawful for any person to be in any roadway other than in a safety zone or crosswalk, provided that this provision shall not be construed to prevent the necessary use of a roadway by a pedestrian.” Under the facts it was not necessary for the plaintiff to use that portion of Geary street which he was attempting to cross. The rule applicable in determining whether a local ordinance or the general law is controlling is settled. In Atlas Mixed Mortar Co. v. City of Burbank, 202 Cal. 660, at page 663, 262 P. 334, at page 336, the court said: “The effect of these several decisions is to declare that, whenever the state of California sees fit to adopt a general scheme for the regulation and control of motor vehicles upon the public highways of the state, the entire control over whatever phases of the subject are covered by state legislation ceases in so far as municipal or local regulation is concerned.” The question then arises “* what phases of the subject are covered by state legislation *” Many phases are so covered in chapter 10 of division IX of the Vehicle Code, secs. 560–564, St.1935, p. 188. The plaintiff contends that section 562 states the rule governing this action. That section is as follows: “562. (a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.” The rule there declared does not prohibit a pedestrian from crossing in between intersections, but requires him to yield the right of way. Genola v. Barnett, Cal.Sup., 93 P.2d 109; Mitrovitch v. Graves, 25 Cal.App.2d 649, 78 P.2d 227. The crux of the instant case is the right of the plaintiff, at the time and place above mentioned, to cross Geary street. Clearly section 562, at least in part, deals with that subject. But it may not be said it deals with every phase thereof. The section of the ordinance is broader and more drastic. It not only imposes the duty on a pedestrian to yield the right of way at the place of the accident but it goes further and absolutely prohibits a pedestrian, except when necessary, from being in the place where the accident occurred. No authority has been cited to us that either directs or authorizes us to hold that the provisions of said ordinance which extend and make more drastic the statutory rule are invalid. They do not conflict with the statute. Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172. The added restriction is a phase not covered by the statute and the case does not fall within the rule stated in Atlas Mixed Mortar Co. v. City of Burbank, supra. That statement is fully supported by an examination of the facts and the conclusions of the courts in many of the decided cases. Mann v. Scott, 180 Cal. 550, 182 P. 281; Winsky v. De Mandel, 204 Cal. 107, 266 P. 534; Ex parte Snowden, 12 Cal.App. 521, 107 P. 724; Pemberton v. Arny, 42 Cal.App. 19, 183 P. 356; Ham v. County of Los Angeles, 46 Cal.App. 148, 189 P. 462; Humphrey v. U.S. Macaroni Co., 49 Cal.App. 395, 193 P. 609; Flynn v. Bledsoe Co., 92 Cal.App. 145, 267 P. 887; Borum v. Graham, 4 Cal.App.2d 331, 40 P.2d 866. The case last cited is particularly in point. Section 113 of the California Vehicle Act, St.1927, p. 1436, as it was worded at the time of the accident involved, required one operating an automobile to drive it at a careful and prudent speed. Section 5 of an ordinance of Pasadena provided for the marking of crosswalks. Section 8 of said ordinance prohibited vehicles from entering the space so marked when a pedestrian was crossing. The defendant made the same claim that this plaintiff now makes. On page 337, of 4 Cal.App.2d, 40 P.2d at page 869, the court said: “We are well satisfied that such cannot be said, for there is no conflict. Nothing in the legislative regulation is changed, and nothing is taken therefrom. The provisions of section 113 prescribe generally the exercise of a constant, careful, and prudent speed and maximum lawful speed at intersections. This in effect would require the operator of a vehicle to stop in an intersection if necessary to avoid danger to others lawfully using the highway. The ordinance in question made it obligatory to stop if a pedestrian were in such marked crosswalk on the same side of the street.” We therefore hold that the provision of paragraph 3 of section 10 of ordinance No. 7691 (new series) of the city and county of San Francisco is applicable and controlling.

That proposition being clear, it follows the plaintiff was guilty of contributory negligence as a matter of law which proximately contributed to the injuries complained of. In Meincke v. Oakland Garage, Inc., 11 Cal.2d 255, on page 256, 79 P.2d 91, on page 92, the court said: “These facts are clear: (1) That plaintiff was violating an ordinance designed to prevent the very character or type of injury which plaintiff received; (2) that the violation of this ordinance continued to the very moment of impact; and (3) that the injury would not have occurred if plaintiff had not been violating the ordinance. Under such circumstances there is no room for reasonable minds to differ and plaintiff's violation of the ordinance becomes a proximate cause of his injury as a matter of law (Hopkins v. Galland Mercantile Laundry Co., 218 Cal. 130, 21 P.2d 553; Cadwell v. Anschutz, 4 Cal.2d 709, 52 P.2d 916; Leek v. Western Union Telegraph Co., 20 Cal.App.2d 374, 66 P.2d 1232), unless there are facts which bring the case within the last clear chance doctrine. (Girdner v. Union Oil Co., 216 Cal. 197, 13 P.2d 915.)” As above recited the facts did not involve the last clear chance doctrine, therefore the Meincke case is controlling.

The judgment is reversed.


We concur: NOURSE, P.J.; SPENCE, J.

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