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District Court of Appeal, Third District, California.

Jesse R. HUDSON, Plaintiff and Appellant, v. Patricia Y. RAINVILLE, Defendant and Respondent.*

Civ. 8580.

Decided: December 08, 1955

Clewe & Blade, Oroville, for appellant. Peters & Peters, Chico, for respondent.

Plaintiff-appellant brought this action to recover damages for personal injuries which he claimed to have suffered as a result of respondent's negligence. A jury returned a verdict in favor of respondent and from the judgment which followed this appeal is taken.

The accident occurred on one of the main streets in Yuba City which runs generally east and west. Appellant lives on the north side of the street about 300 feet east of the point on the street where the accident occurred. The accident occurred in a residential zone as defined in the Vehicle Code, § 90. The street past appellant's house is paved with concrete and is 56 1/2 feet wide from curb to curb. Two hundred sixty-six and one-half feet west of the path which leads from appellant's house to the sidewalk the concrete pavement abruptly narrows down to twenty-five feet in width with earth and rock shoulders on either side of the strip. There is a concrete sidewalk on the north side of the street from a point east of appellant's home to a point about sixty feet west of it. The accident occurred a few minutes after 5 o'clock on the afternoon of the 6th of March. It had been a cloudy day with intermittent rain and sunshine and the street pavement was wet. At about 5 o'clock the sun was low on the horizon to the west, its elevation being slightly over eleven degrees above horizontal. For several years before the accident appellant had kept horses in a fenced pasture just west of his home and on his side of the street. It had been his custom to take baled hay down to the pasture to feed his horses and he hauled the hay on a little toy red wagon that belonged to his small son. On the day of the accident, and shortly before 5 o'clock P.M., he took a bale of hay out of his garage, put it on the little wagon and started for the pasture, pulling the wagon behind him. He followed the sidewalk on the north side of the street to the end thereof, and then went onto the street and proceeded along near the curb for about 200 feet to the point where the street pavement narrowed. Here he turned left and followed the pavement edge to the point where the narrow pavement began. There he looked in both directions. He saw a car approaching from the west several hundred feet away but saw nothing coming from the east. He turned right and proceeded to walk west, all four wheels of the wagon on the north edge of the 25-foot pavement. When he had gone about 33 feet west from the beginning of the narrow pavement he was struck from the rear by the automobile driven by respondent. As he walked alone the narrow pavement he had not looked back. Respondent had entered the street at a point east of appellant's home and proceeded west. Opposite appellant's home she saw two automobiles double parked along the curb. She was driving about 30 miles an hour. As she came up to the two parked cars she saw a car coming from the west. She swerved left to go around the parked cars and then pulled her car back to her own side of the road to avoid the oncoming car. During the moments preceding the accident the only vehicles moving on the street were the car coming from the west and the car driven by respondent. The car coming from the west was so far west of the point of the accident that its driver was able to see the collision as it happened. As respondent came close to the point where the pavement narrowed the sun suddenly emerged from behind the clouds and its direct light and its reflected light from the wet pavement blinded her. She immediately ‘slammed’ on her brakes because she could not see and threw her hand up in front of her face. At nearly the same time she struck the appellant. She had not seen him until the moment she struck him. At the time of the impact she was still traveling about 30 miles per hour. We think it best at this point to quote her testimony. It was as follows:

‘Q. * * * In addition to looking at this other car [the car coming from the west], whatever position it was, you then say that after you got on to your side of the street, you looked in the direction of your path? A. That's right.

‘Q. Did you continue to look in that direction at all times from the time you got back to your side until the accident occurred? A. That's right.

cQ. You didn't look off to the right? A. No, there is nothing to see off to the right.

‘Q. And you didn't look off to the left? A. No.

‘Q. You didn't look at anything inside your car? A. No.

‘Q. Nothing distracted your attention inside the car that made you take your eyes from the road? A. Not a bit.

‘Q. And I understood you to say that as you got up to the point where Mr. Hudson has marked, or perhaps a few feet back, from the point where the accident occurred, the events that took place were like this, the sun came out from behind a could and had a blinding effect on your eyes? A. That's right.

‘Q. You threw up your hand, applied the brakes and then you saw Mr. Hudson and your car struck him, and in that order? A. Yes.

‘Q. And almost as fast as I have said it, is that right, or perhaps faster? A. Faster.

‘Q. So that before the sun came out, the condition that it cause of tending to blind you was not in that condition until it did come out, was it? A. Didn't seem so.

‘Q. Well, so that your ability to see was impaired because the sun came out, is that right? A. It seemed that way, yes.

‘Q. And yet after the sun came out, you didn't see Mr. Hudson? A. Oh, when I was right on top of him. * * *

‘Q. As you drove along that day, Miss Rainville, were you conscious of any obstruction in your windshield as far as any water or dirt or anything to impair your sight? A. No, I don't remember it being that way.’

Appellant asked the court to give the following instruction: ‘You are instructed that the evidence in this case has established as a matter of law that the defendant was guilty of negligence and that such negligence was the proximate cause of the accident here in question.’ The court refused, and on the contrary and under appropriate instructions submitted the issue of respondent's negligence to the jury. This was error. The accident occurred in a residence zone. Appellant had a right to be where he was. He was not compelled to give way to automobile traffic when he had assumed a position on, and was progressing along, a proper part of the street. On the contrary, it was the duty of vehicular traffic to recognize his right to be where he was and to progress as he did and the failure to do so was a violation of law. We are not for the moment concerned with the contention of respondent that appellant was guilty of contributory negligence. We are concerned only with the conduct of respondent. Her own testimony discloses her negligence as a matter of law. For about 250 feet as she went westerly on the street toward appellant at 30 miles per hour, she was looking toward him with nothing to interfere with her vision. She saw the automobile approaching from the west farther down the street. She did not see the eyecatching spectacle of appellant drawing a toy red wagon loaded with a bale of hay, although these objects were all clearly visible to her. She continued on her unheeding way without diminution of her speed and without seeing these objects until so close thereto that, whether or not the sun came out and blinded her, she could not have stopped without running appellant down. Respondent's being blinded by the sudden emergence of the sun from behind the clouds is clearly shown by respondent's own testimony to have had nothing to do, as a causative factor, with the happening of the accident. She had not seen appellant up to that time, although he had been plainly within the range of her vision for 250 feet or thereabouts. When the sun blinded her she slammed on her brakes, as she put it, and she stopped, but not because she had seen the appellant. She did not see him until the very moment she struck him. If she had seen him when the sun blinded her she could not have stopped any more than she was able to stop when she put on her brakes because of the emergence of the sun. At that moment respondent was within less than one second of the point of impact. Perhaps if the sun had not blinded her she might have seen the appellant before she hit him and might have taken some evasive action even though she could not stop. But it was her neglect which placed her in that position, and if the sun's rays prevented her from taking evasive action, that does not excuse her from bringing herself into a point where such action became necessary. The jury should have been instructed by the court that the negligence of respondent had been shown as a matter of law, and that equally as a matter of law it had been shown that such negligence was a proximate cause of the accident. Huetter v. Andrews, 91 Cal.App.2d 142, 204 P.2d 655.

Appellant contends that it appeared from the evidence as a matter of law that he had not been guilty of contributory negligence, and that therefore this court should so declare and return the cause for further trial upon the issue of damages alone. We cannot agree with this contention. To be sure, since he was in a residence zone, appellant had a right to be on the street, where he was, and to travel as he traveled and he had a right to assume, until circumstances indicated otherwise, that other vehicular traffic upon the street would respect his right. But it appears that, although, according to his own testimony which is not in dispute, he looked behind him before going onto the narrow pavement, and though he could elect to travel there rather than on the shoulder, and though when he looked back there was no vehicular traffic approaching him from the east which was visible, nevertheless it equally appears that he knew he was going on a part of the street used for vehicular traffic, and that at that hour of the day traffic was generally heavy there, even though at that particular moment of time only one car to his knowledge was using that part of the street, which car was coming from the west. The jury could conclude that in entering upon the bottleneck of the narrow pavement and traversing it without looking back for a length of time sufficient for traffic coming from the east to arrive where he was, he was negligent in failing to exercise proper care for his own safety. The law does not set arbitrary standards as to what constitutes due care for his own concern when a pedestrian is situated as was appellant. It does not say he must look back, nor that he need never do so. It requires him to exercise due care, and this means that he must use his faculties of sight and hearing for that purpose whenever a reasonably prudent man would do so. He may go upon the street, but whether or not, under the circumstances then existing, his conduct evinces a proper care for his own safety is generally a question of fact for the jury to determine and we think it was in this case.

The judgment appealed from is reversed, with instructions to the trial court to retry the case upon the issues of contributory negligence and of damages.

VAN DYKE, Presiding Justice.

PEEK and SCHOTTKY, JJ., concur.

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