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

Nora NOVAK, Plaintiff and Appellant, v. Glen Hudson DEWAR, Sr., Defendant and Respondent.*

Civ. 24974.

Decided: December 19, 1960

Cooney & Cooney, Matt D. Cooney, Sherman Oaks, for appellant. Sheridan, Orr, Barnes, Duval & Benton, Edwin Duval, Ventura, for respondent.

Plaintiff, a pedestrian, was struck by an automobile driven by the defendant at about 7:45 p. m. on September 1, 1958, while she was proceeding in a marked crosswalk across ‘A’ Street at Fourth Street, in Oxnard. The jury returned a verdict for the defendant. The sole question presented by the plaintiff on this appeal is whether there is sufficient evidence to support the jury's verdict.

The physical facts indicate that ‘A’ Street runs in a general north-south direction and Fourth Street east-west. Both streets contain four lanes marked for traffic and the intersection was controlled by automatic red, yellow and green traffic lights. It was conceded that the plaintiff was crossing with the light in her favor.

The plaintiff testified that she was walking westward on the north side of Fourth Street and that she reached the ‘A’ Street intersection, waited for the light to turn green, and then proceeded into the intersection in the crosswalk. She stated that she looked in all directions before crossing and saw the headlights of the defendant's car approaching along Fourth Street from the west, approximately 250 to 300 feet away, ‘not far from the intersection of the other block’. She testified that the only other car she observed in the area of the intersection was a police car parked on Fourth Street. Mrs. Novak related that she kept the defendant's car in her vision as it approached the intersection, and when she reached a point almost half-way across the street, the car seemed to speed up and ‘suddenly swerved and turned to the left and came right toward’ her. She said that she then tried to get across the street as fast as she could and that she leaped to avoid the impact, but was struck by the defendant.

Officer Stachey, a member of the Oxnard Police Department, testified for the plaintiff that he was sitting in his police car facing west on Fourth Street about 40 feet east of the ‘A’ Street intersection, that he observed the plaintiff approach the intersection and that a car heading west on Fourth Street was waiting at the intersection for the light to change. The officer related that the light changed to green for both the plaintiff and the Fourth Street traffic. He could not, from his observation, ascertain whether the defendant was stopped at the intersection or approaching it as the light turned. He further testified that the defendant did not yield to the westbound traffic but rather turned left with a ‘light to medium acceleration’. He said that the acceleration was such that it was possible that the car had started from a stopped position at the traffic light.

The officer further testified that his view of Mrs. Novak was partially obstructed by trees and that he was not certain that she entered the intersection at the moment the light turned green. He said that he last observed her walking at a normal speed at a point near the dividing line of the two northbound lanes when the trees obscured his vision. He related that he did not observe the actual impact, but within ‘just seconds, split seconds' he heard a ‘thud’. He testified that he reached the scene within a few seconds and observed the plaintiff lying in the street on the lane divider of the two northbound lanes, about two feet north of the crosswalk.

The defendant's witness Johnson testified that he had been driving south on ‘A’ Street toward Fourth, saw the light change to red while he was several houses from the intersection, and came to a stop at the intersection. He said that he did not observe anyone in the crosswalk until a period of ‘about fifteen seconds or so’ had passed and that the plaintiff then stepped off the curb into the street. Immediately thereafter, related Johnson, he observed the defendant's car turning left in front of him, proceeding ‘very slow’, ‘not more than five miles an hour’, with his blinker lights signaling a left turn. He said that he could not recall whether the defendant had been stopped at the light. Johnson did not see the actual impact but heard the brakes and a scream. He observed the defendant's car stopped with its front end in the crosswalk with the plaintiff lying just outside the crosswalk, ‘a foot and a half, two feet’ in front of the car.

The defendant testified that he was driving eastward on Fourth Street toward the ‘A’ Street intersection, that he stopped half a block away to discharge some passengers, and that he then proceeded to the intersection where he stopped in the left lane for the red traffic light, preparatory to making a left turn. He indicated a left turn with his blinker lights and, after the traffic light changed to green, he ‘hesitated’ a few seconds to see if a car at the opposite side of the intersection heading west would wait for his turn. He stated that the oncoming car waited and that he saw no one in the crosswalk so he ‘slowly proceeded to make a left turn’ at an estimated 10 to 15 miles per hour. He testified that he first saw the plaintiff as he was about to enter the crosswalk and that she was ‘to the right of my car’, ‘perhaps a foot or two’, ‘almost to the point of impact’, and that she appeared to be ‘running or hurrying to get across'. The defendant said that he applied his power brakes and stopped almost immediately without skid marks, his front end within the crosswalk area. He testified that after the impact he got out of his car and found the plaintiff lying about three feet north of his car, at a point midway between the two northbound lanes on the lane divider.

It is apparent from the evidence that the defendant was guilty of negligence in not keeping a proper lookout ahead, in not anticipating the presence of a pedestrian in the crosswalk and in failing to yield the right of way as required by Vehicle Code, section 560(a).1 Gray v. Brinkerhoff, 41 Cal.2d 180, 184, 258 P.2d 834; Jeffs v. La Gore, 131 Cal.App.2d 181, 185, 280 P.2d 140. As contended by the plaintiff, ‘[i]t remains only to be seen therefore, whether or not from all of the evidence any reasonable inference may be indulged in to the effect that the plaintiff-appellant is guilty of contributory negligence’. We cannot, however, agree with the plaintiff's conclusion that there was no evidence to support the jury's implied finding of contributory negligence.

The plaintiff's argument is predicated upon the theory that there was no appreciable conflict in the evidence, and that the evidence indicated that the plaintiff was acting as an ordinary prudent person would under the circumstances. Thus, concludes the plaintiff, the issue of contributory negligence, which is ordinarily a question of mixed fact and law, is here a question of law.

It is true that the question of whether or not the ‘plaintiff was guilty of contributory negligence * * * is ordinarily a question of mixed fact and law and may be determined as a matter of law only if reasonable men following the law can draw but one conclusion from the evidence presented’ (Gray v. Brinkerhoff, supra, 41 Cal.2d at page 183, 258 P.2d at page 836). However, examination of the testimony in the case at bar indicates a substantial conflict in the evidence concerning the relative time of plaintiff's departure from the sidewalk into the ‘A’ Street crosswalk, the position and speed of defendant's car at that moment, the position of the plaintiff as she was struck and the traffic in the area of the intersection at that moment.

Since the plaintiff's presence in the crosswalk did not relieve her from exercising due care throughout her passage through the intersection (O'Brien v. Schellberg, 59 Cal.App.2d 764, 768, 140 P.2d 159), the evidence, with the conflicts resolved in the defendant-respondent's favor, raises inferences that the plaintiff was contributorily negligent in failing to look (Smith v. Sugich Co., 179 Cal.App.2d 299, 3 Cal.Rptr. 718; O'Brien v. Schellberg, supra, 59 Cal.App.2d at page 769, 140 P.2d at page 161) or in seeing the defendant and hurrying to cross in front of him (Jeffs v. La Gore, supra, 131 Cal.App.2d 181, 184, 280 P.2d 140; Shoemake v. Wilsey, 43 Cal.2d 686, 687–688, 277 P.2d 17).

It is not within our province to determine which alternative the jury relied upon in reaching the implied finding of contributory negligence. It is only necessary that we ascertain whether or not there is any substantial evidence to support the jury's verdict. The rule of Gray v. Brinkerhoff, supra, operates when the evidence is capable of only one conclusion. Where, as here, two or more inferences can be reasonably deducted from the facts, the reviewing court is without the power to substitute its deductions for those of the jury. Callahan v. Gray, 44 Cal.2d 107, 111, 279 P.2d 963; Shoemake v. Wilsey, supra, 43 Cal.2d at page 688, 277 P.2d at page 18.



1.  Now Vehicle Code 1959, § 21950.

HERNDON Justice.

FOX, P. J., and ASHBURN, J., concur.