KIRK v. LOS ANGELES RY CORPORATION

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

KIRK v. LOS ANGELES RY. CORPORATION.*

Civ. 14714.

Decided: January 26, 1945

Entenza & Gramer and John J. Craig, all of Los Angeles, for appellant. Gibson, Dunn & Crutcher, of Los Angeles (E. H. Chapman, of Los Angeles, of counsel), for respondent.

Plaintiff commenced this action to recover for injuries which she suffered when she was struck by defendant's street car. At the conclusion of plaintiff's evidence the trial court granted a motion for a nonsuit and plaintiff has appealed from the ensuing judgment.

Plaintiff was standing at the southeast corner of Seventh Street and Broadway in the city of Los Angeles at 11 o'clock p. m. on May 23, 1942. In company with two soldiers she started to cross Broadway going in a westerly direction. As she started the green light ‘go’ signal was displayed. Several persons were crossing ahead of plaintiff and others were crossing in the opposite direction. Two lines of vehicles were standing at her left. At this intersection two lines of street car tracks extended north and south along Broadway. When plaintiff arrived at a point between the first two car tracks the traffic signal changed to ‘stop’. When plaintiff arrived at a point close to the southbound street car tracks she saw defendant's street car approaching from her right. She quickened her pace to cross in front of the street car. One of her companions ‘grabbed’ her arm and called her attention to the fact that the street car was very close. Her purse was pushed from under her elbow and it struck the ground about two feet west of the west rail of the southbound car tracks. The contents of the purse were scattered about. She testified that ‘without pausing’ she stooped to retrieve her purse. A witness for plaintiff testified that plaintiff was bent over, facing southwest and her hands were on the ground. Plaintiff's companions had crossed immediately in front of her. The street car was traveling from 10 to 12 miles per hour, its bell ringing.

Considering the evidence under the rule that it must be viewed in the light most favorable to plaintiff in passing upon a motion for a nonsuit, it may be reasonably inferred that defendant's motorman was guilty of negligence in starting his car before the proper signal was given him. But plaintiff must meet the more serious charge that her own evidence shows that she was guilty of negligence which contributed to her injuries. It appears without contradiction that plaintiff saw the necessity of hurrying in order to cross in front of the approaching street car and that she actually did succeed in passing in front of the car. It is also apparent that she would have escaped injury if she had not stooped to retrieve her purse. No argument is necessary to convince that plaintiff's forward motion was retarded when she stooped to pick up her purse and that the act of stooping brought her hip in contact with the steps of the street car, the front part of which had already reached a point beyond the point where plaintiff was stooping. The trial judge reached the conclusion that the only reasonable view that could be taken of the evidence was that plaintiff was guilty of negligence which contributed to her injuries. We see no occasion to interfere with his judgment.

The judgment is affirmed.

I dissent. The only point involved is whether the only reasonable view of the evidence required the court to determine as a matter of law that plaintiff was negligent in stooping to retrieve her purse. The test is whether she, while in a position where she had a right to be, did an unreasonably careless act in attempting to recover a property which under the same circumstance it might reasonably be determined that an ordinarily prudent person might have done. For the court to say as a matter of law that she was negligent took from the jury the task which the law had assigned to them. In crossing a street in the midst of traffic a person carries with him the totality of his ego: his emotions, his impetuosity, his instinct for self-preservation, his attachment to and his zeal to guard and conserve his personal possessions, or his phlegmatism and apathy with regard to the world around him. If in view of an approaching peril, one errs or miscalculates or becomes confused he is not thereby necessarily negligent. The question he presents is whether it was negligence for him as a reasonably prudent person, under the circumstance of his case, so to err or miscalculate.

Such was the problem which should have been submitted to the jury in the case of appellant. She was lawfully pursuing her way over a cross-walk; knew that the motorman was obliged to see her and to use ordinary care not to strike her and knew that if she was in a position of peril the motorman would sound his gong. Amendt v. Pacific Electric R. Co., 46 Cal.App.2d 248, 253, 115 P.2d 588. In stooping for her purse the jury might reasonably have found that she did what a woman of ordinary prudence would have done in her situation. Giving every item of her proof and every legitimate inference their full value, and disregarding all evidence that favored defendant the evidence was sufficient to support a verdict if one should be returned in favor of plaintiff. Gish v. Los Angeles R. Corp., 13 Cal.2d 570, 90 P.2d 792.

W. J. WOOD, Justice.

McCOMB, J., concurs.

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