PARSEKYAN v. THOMPSON (1962)

Plaintiff, a pedestrian in a marked cross-walk, was struck by defendants' automobile. The case was tried without a jury. The court found that defendant driver was not negligent and that the injury was caused by the negligence of the plaintiff and gave judgment for defendants. Plaintiff has appealed from the judgment. The sole issue on appeal is the sufficiency of the evidence.

The record contains evidence of these circumstances:

The accident occurred on November 11, 1958, at about 6 p. m. It was dark, the weather was clear and the street dry. Plaintiff was crossing Ventura Boulevard from north to south in a marked crosswalk near the intersection of Matilija Avenue. Ventura Boulevard is divided into six lanes. Traffic was heavy. Defendants' Buick was west bound in the first lane north of the center line, at a speed between 30 and 35 miles per hour. The posted speed limit there was 35 miles per hour. The driver was looking ahead and his headlights were on. Plaintiff safely crossed the path of defendants' car as she proceeded towards the south. When she arrived at or near the center of the street (two feet south of the center line according to defendant; two steps north of the center line according to plaintiff), she suddenly concluded that she was in danger of being struck by an eastbound car. Plaintiff moved backwards three or four steps. The driver of the Buick applied his brakes and swerved to the right. The front of the Buick cleared the plaintiff, but she backed into the extreme rear of the left side of the car.

Vehicle Code, Section 560, subdivision (a) (section 21950 in the 1959 recodification), requires that a vehicle shall yield the right of way to a pedestrian in a marked crosswalk, but it does not require a driver to anticipate such a maneuver as was executed by plaintiff here. In Giles v. Happely, 123 Cal.App.2d 894, 267 P.2d 1051, the court approved a jury instruction which included the following language (p. 896, 267 P.2d p. 1053):

“You are further instructed that if a driver, after having allowed a pedestrian in a crosswalk to proceed in front of him and reach a place of safety out of the way of his automobile, with no apparent further danger of conflict between them, may then proceed to drive across and through said crosswalk and he need not wait until the pedestrian has cleared the entire roadway.

“Under the same circumstances the said automobile driver need not anticipate that the pedestrian may change his mind and reverse his course of travel in the absence of circumstances suggesting such a course. If the pedestrian reverses his course and places himself in a position of peril in such close proximity to the driver's automobile so that the driver would not have time to stop or change his course to avoid a collision, such driver would not be liable in the absence of other negligence on his part which was the sole proximate cause of the collision.”

Under the interpretation given to the statute by that instruction, the evidence in this case supports the finding that the driver of the Buick did not violate any duty owed to the plaintiff. The motorist had no reason to anticipate that the plaintiff, having once safely crossed his path, would suddenly walk backwards against his automobile. Once she started backwards, there was nothing the driver could do to avoid her coming in contact with his car.

Since the trial court's finding that the defendant driver was not negligent is sufficient to dispose of the case, it is not necessary to consider whether plaintiff was guilty of contributory negligence.

The judgment is affirmed.

FILES, Justice.

SHINN, P. J., and FORD, J., concur.