FAROLE v. EICHMAN

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

FAROLE v. EICHMAN et al.*

Civ. 18628.

Decided: March 31, 1952

C. F. Jorz, Los Angeles, for appellants. No appearance for respondent.

This appeal is from a judgment in favor of plaintiff after trial before a jury.

Viewing the evidence most favorable to plaintiff, the facts are as follows:

At about 7:40 p. m. in dry weather plaintiff and a friend riding on a bicycle arrived at the intersection of Junipero and Broadway streets in Long Beach. Junipero proceeds in a northerly and southerly direction, while Broadway runs easterly and westerly.

Plaintiff and his friend entered a drug store on the northeast corner, leaving the bicycle on which they had been riding in front of the store. Plaintiff was 14 years old, weighed about 150 pounds and was approximately five feet, ten inches in height. His friend was 15 years old and of approximately the same weight.

On the southeast corner of the intersection was a ‘malt shop.’ After remaining in the drug store about five minutes they decided to go across the street to the malt shop. After plaintiff's friend had mounted the bicycle, plaintiff climbed on the handle bars and sat upon it with his feet hanging down. There were no lights on the bicycle. They proceeded in a southerly direction in the crosswalk on the cast side of the intersection. At about five feet south of the center line of Broadway they were stuck by an eastbound truck driven by defendant Eichman.

Question: Was plaintiff guilty of contributory negligence as a matter of law in riding upon the handle bars of the bicycle at the time the accident occurred?

Yes. The law is settled and (1) the violation of a statute or ordinance constitutes negligence per se, and (2) it constitutes contributory negligence if the failure to comply with the statute or ordinance contributes directly to the injury. (Leek v. Western Union Tel. Co., 20 Cal.App.2d 374, 376[1], 66 P.2d 1232.)

In the present case at the time of the accident Ordinance No. C–2022 of the City of Long Beach read:

‘Section 28—Riding Only on Seats. No Riding.

‘A. No person operating a bicycle shall ride other than upon or astride the permanent regular seats attached thereto, or carry any other person upon such bicycle other than upon a permanent attached and regular attached seat thereon, nor shall any person ride upon a bicycle other than as permitted above.

‘B. No bicycle shall be used to carry more persons at one time than the number for which it is designed and equipped.’ (Italics added.)

As plaintiff violated the italicized provision of the foregoing ordinance by riding upon the handle bars of the bicycle, he was guilty of contributory negligence per se. Since the accident could not have occurred had plaintiff obeyed the ordinance his negligence was one of the proximate causes of the accident. Therefore he cannot recover for his injuries, and the judgment in his favor was erroneous. (Leek v. Western Union Tel. Co., supra, 20 Cal.App.2d 376[2], 66 P.2d 1232.)

Reversed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.