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FRANCIS v. CITY AND COUNTY OF SAN FRANCISCO

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

FRANCIS v. CITY AND COUNTY OF SAN FRANCISCO et al.*

Civ. No. 15695.

Decided: March 26, 1954

Jack H. Werchick, San Francisco, for appellant. Dion R. Holm, City Atty. City & County of San Francisco, Joseph F. Murphy, Richard Saveri, Dep. City Attys., San Francisco, for respondents.

Plaintiff appeals from a judgment for defendants entered pursuant to a jury verdict. Plaintiff was a pedestrian crossing Sutter Street at the intersection of Sutter and Powell Streets in San Francisco when he came in contact with a municipal bus and suffered personal injuries. The incident occurred at about 5 p. m. Appellant was in the easterly marked crosswalk and had taken three or four steps southerly from the curb at the northeast corner. The bus was proceeding westerly on Sutter Street. A traffic officer was directing traffic at the time. The crucial question was whether the traffic officer had signed to stop the east-west flow of traffic before plaintiff left the curb.

Plaintiff testified that he was standing on the curb waiting for the east-west traffic flow to be stopped by the traffic officer; that the officer blew his whistle and extended his arms with palms outward toward the east-west traffic on Sutter Street and motioned one car already in the intersection to clear it. Plaintiff then looked easterly along Sutter Street, saw the municipal bus approaching 50 or 75 feet away and without looking in that direction again took three or four steps when he was struck by the right front corner of the bus.

The court gave the jury at the request of the defendants the following instruction:

‘It is the duty devolved upon Mr. Francis, as the act of an ordinarily prudent person, that immediately before placing himself in a position of danger, to look in the direction in which danger is to be anticipated. This is a continuing duty and it is not met by looking once and then looking away. It is not a duty to look only one way and continue so to look, but rather to look in the direction or directions of anticipated danger and to continue to be alert to safeguard against injury.’ (Emphasis ours.)

The exact language which we have emphasized in this instruction has been held to be prejudicial error. Salomon v. Meyer, 1 Cal.2d 11, 32 P.2d 631; Goodwin v. Foley, 75 Cal.App.2d 195, 170 P.2d 503. In the Salomon case the Supreme Court said: ‘The vice of the instruction * * * lies in the unqualified statement that ‘the is a continuing duty, and is not met by looking once and then looking away.’ Whenever there is room for an honest difference of opinion between men of average intelligence, the question of whether the plaintiff was negligence in failing to look again in the direction from which the defendant's car was approaching is a question of fact for the jury and the finding of the triers of fact is conclusive.' 1 Cal.2d at page 15, 32 P.2d at page 633.

Even if the jury believed plaintiff's testimony implicitly this instruction would compel a verdict against him, since he testified that he looked at the bus only once when he saw it 50 or 75 feet from the intersection and did not look that way again until the bus was too close for him to escape it.

Respondents argue that the last sentence of the instruction cures the error in the offending sentence. The only direction from which danger could reasonably be expected while plaintiff was in the northerly half of Sutter Street was from the direction in which the bus was approaching, so that the last sentence which informed the jury that the duty was ‘to look in the direction or directions of anticipated danger’ only emphasized the error, rather than curing it. A similar sentence is found in the offending instruction in the Salomon case, ‘it is the duty of the pedestrian to look to the right and to the left whenever he or she has voluntarily put himself or herself into a position which may be one of peril coming from either direction.’ Salomon v. Meyer, supra, 1 Cal.2d at pages 13–14, 32 P.2d at page 632.

Respondents' further argument that the error in this instruction is cured by other instructions is not borne out by an examination of the instructions given. The offending instruction singled out the plaintiff by name and clearly implied by its language, ‘immediately before placing himself in a position of danger’, that in entering the intersection plaintiff did in fact place himself in such a position of danger as to place upon him the continuing duty to look to the east, because as we have pointed out that was the only direction from which danger could be reasonably anticipated before he reached the center line of Sutter Street. No amount of general instructions could cure the error in this specific instruction which put the continuing duty on the plaintiff to look in the direction of anticipated danger (i. e., in this case to the east) and expressly told the jury that this duty ‘is not met by looking once and then looking away.’

Respondents finally argue that the error was not prejudicial under Art. VI, § 4 1/212 Const. They point out that plaintiff was the only witness who testified that the traffic officer had signaled the east-west traffic to stop before plaintiff left the curb. Neither the bus driver nor the traffic officer saw the impact between plaintiff and the bus, but both testified that the officer at the time was directing the flow of traffic east and west across Powell Street. Two pedestrians who saw the impact gave similar testimony. However respondents' witnesses contradicted one another in certain particulars of which we mention two. Three of the witnesses testified that the flow of traffic east and west had continued for some time before the impact. The fourth testified that the bus came to a stop before crossing Powell Street because the flow of traffic was north and south on Powell Street as it neared the intersection and that only when the officer stopped the north-south flow of traffic and gave the signal for east-west traffic to proceed did the bus start up and cross over Powell. The driver testified that he learned of the impact while the bus was still in motion by some passenger saying: ‘A man got hit.’ One of the other witnesses testified that he boarded the bus after it stopped on the northwest corner and asked the driver: ‘Did you know that you hit a man?’, to which the driver answered: ‘No.’ The plaintiff was not impeached or shaken in his testimony in any way and a plaintiff's verdict would find ample support in the evidence, since the testimony of a single credible witness is always sufficient to support a finding. Section 1844 Code Civ.Proc.

Under these circumstances we cannot say that a different verdict would have been improbable had the erroneous instruction not been given. This is the test of prejudicial error most recently laid down by the Supreme Court in both civil and criminal cases. People v. Carnine, 41 Cal.2d 384, 260 P.2d 16; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 624, 255 P.2d 785; People v. Newson, 37 Cal.2d 34, 45, 230 P.2d 618; Delzell v. Day, 36 Cal.2d 349, 351, 223 P.2d 625.

Judgment reversed.

I dissent. The majority opinion rests wholly on Salomon v. Meyer, 1 Cal.2d 11, 32 P.2d 631 and Goodwin v. Foley, 75 Cal.App.2d 195, 170 P.2d 503. They both concern a similar instruction that it is the duty of a pedestrian to look before placing himself in a position of danger and that ‘This is a continuing duty and it is not met by looking once and then looking away.’ Both cases are contrary to the great weight of authority. For citations see Gibb v. Cleave, 12 Cal.App.2d 468 at page 471, 55 P.2d 938. No qualifying language was used in either of those cases. Here the condemned instruction further read: ‘It is not a duty to look only one way and continue so to look, but rather to look in the direction or directions of anticipated danger and to continue to be alert to safeguard against injury.’ (Emphasis added.)

In final analysis the instruction means nothing more than that the pedestrian's duty is not fulfilled by taking one look and then closing his eyes and walking blindly into the ‘direction of anticipated danger.’

This distinction in the two cited cases is clearly expressed in Taha v. Finegold, 81 Cal.App.2d 536, 541, 184 P.2d 533, where the portion of the instruction resting on the question of contributory negligence and the ‘one look’ was followed by the injunction that the issue of contributory negligence was to be determined on what was the usual conduct of an ordinarily prudent person. If the jury should determine that an ordinarily prudent person would keep his eyes open when crossing a busy intersection then it could properly conclude that the pedestrian's duty was not ended with a single look.

It is elementary that all instructions must be read together. It is not sufficient to take one sentence and rely wholly upon that. Here the qualifying language that it is the duty of a pedestrian to continue to be alert to safeguard against injury renders the instruction free from error, as was held in Taha v. Finegold, supra. The reason for the instruction is obvious. In a busy intersection, such as we have here, vehicles frequently make both right and left turns. Such movements may not be observed through one look while standing on the curb. The instruction means no more than that a pedestrian must always be on the alert to avoid such injury. For that reason I do not believe that the instruction was prejudicial.

DOOLING, Justice.

KAUFMAN, J., concurs.

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