CALLAHAN v. GRAY

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

CALLAHAN v. GRAY.*

Civ. 20134.

Decided: July 07, 1954

Edward Clayton Jones and William M. Anderson, Los Angeles, for appellant. Spray, Gould & Bowers and Philip L. Bradish, Los Angeles, for respondent.

This is an appeal from a judgment denying relief for alleged injuries resulting from the impact of an automobile with a pedestrian allegedly in a marked crosswalk on a city street. The questions for determination are whether or not as a matter of law respondent is guilty of negligence and whether appellant is free from contributory negligence.

At approximately 9:00 p. m. appellant was walking easterly in a crosswalk on Fair Oaks Avenue in South Pasadena. The night was clear. Respondent was driving northerly along the same avenue about 10 to 15 miles an hour. Having stopped behind another car before reaching the crosswalk, he started again when the way appeared to be open, doing five miles per hour, hesitated, and then struck appellant. There is some confusion as to whether appellant was struck with the left front or the left side of the car. She was not seriously injured. She arose, proceeded on her way to Gus' Barbeque across the street. She did not then visit the hospital for X-rays, but did so several hours later.

Respondent claims contributory negligence on the part of appellant, contending that she did not look where she was going, but carelessly walked into the side of his car.

Appellant rests her entire case on Gray v. Brinkerhoff, 41 Cal.2d 180, 258 P.2d 834. She contends that the facts in her case are practically identical with those outlined in the cited decision. Such contention is error. In that case, the plaintiff, Mrs. Gray, was definitely in the crosswalk when struck and could not, merely by virtue of position, be guilty of contributory negligence as a matter of law unless the manner of the defendant's driving as he approached the crosswalk gave her reasonable cause to fear him. Mrs. Gray first passed in front of the turning truck and was then struck. In the case at bar, the proof warrants a finding on her own testimony that Miss Callahan, without noticing her course, walked into the side of respondent's automobile. In Gray v. Brinkerhoff, the collision occurred in daylight at an intersection where the traffic was controlled by lights. In the case at bar, the accident occurred in the middle of a block, at night time and respondent testified that he did not know that Miss Callahan was in the crosswalk. The Supreme Court held that the question of contributory negligence is a matter of law and not one for the jury where the pedestrian was in the crosswalk. In the instant case, there is a question as to whether or not appellant was in the crosswalk. She contends that she firmly stated that she was in the crosswalk and that respondent said he did not know where he was. On this basis, she contends that the jury should not resolve the doubt in respondent's favor, when he is not certain, as against her firm statement that she was in the crosswalk. Perhaps it was her excess positiveness that impelled the jury to disbelieve her; perhaps her manner of testifying; perchance she protested too much. She may have left the impression that the was in a hurry to visit Gus' Barbeque and hasten to her bowling contest, resulting in her collision. She testified that she proceeded to cross the street, looked south, saw Gray's automobile and ‘kept watching the oncoming car with a definite eye, walking, looking first in the zone and then to the right * * * watching Mr. Gray's at all times. * * * I looked at the curb in front of Gus's and continued to walk on through.’ Later she testified that she did not know whether this car was Gray's; ‘I did not follow that car * * * I was watching where I was walking * * * I looked to the north and down to the south * * * a number of times * * * when I stepped off the curb and looked to the south I don't know where I was.’ From the maps and the illustrative diagram on the board, the jury could reasonably infer that when appellant approached the point of impact, respondent's car was so near that a reasonably prudent person in appellant's position in the street would conclude it to be dangerous to proceed. There is such confusion and inherent contradiction in appellant's testimony as to justify its rejection by a jury. She said the car stopped instantly upon its door coming in contact with her body. The jury could reasonably have inferred that she walked to and against the vehicle and disregarded its approach. Her testimony reveals some confusion in her mind as to whether she was knocked down by the car. At any rate, she wore no royal badge of honor, no insignia that her speech was the divine afflatus. Being free to adopt such evidence as appeared to be veracious, sincere and most nearly accurate, the jury chose to be guided by the testimony of respondent.

The credibility of a witness and the weight to be given to his testimony is peculiarly the exclusive function of the jury. People v. Miller, 51 Cal.App. 189, 190, 196 P. 283; People v. Lecurto, 97 Cal.App. 185, 191, 275 P. 462. A trial judge or jury is not required to believe a witness merely because there is no positive contradiction of his testimony. Travis Glass Co. v. Ibbetson, 186 Cal. 724, 727, 200 P. 595. While a witness is presumed to speak the truth, the jury may reject the testimony of a witness even though uncontradicted. Travis Glass Co. v. Ibbetson, supra; Jewell v. Bell, 120 Cal.App. 682, 685, 8 P.2d 223; Baker v. Fireman's Fund Ins. Co., 79 Cal. 34, 41, 21 P. 357. The same rule applies to inconsistencies in the testimony of a single witness. Therefore, findings will not be disturbed even though the appellate court may conclude that a different result should have been reached. Silva v. Goldman, 117 Cal.App. 423, 426, 4 P.2d 191; Jewell v. Bell, supra, 120 Cal.App. 686, 8 P.2d 223. Even though other inferences might reasonably have been drawn from the evidence, the reviewing court is without power to substitute its conclusions for those of the trial court. Fischer v. Keen, 43 Cal.App.2d 244, 250, 110 P.2d 693.

Because the implied finding that appellant was contributorily negligent is supported by substantial evidence, the judgment cannot be disturbed.

Judgment affirmed.

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.

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