258 P. 686 | Cal. Ct. App. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *723 This is an appeal from a verdict in favor of defendant, in an action for damages for the death of the husband of plaintiff which occurred as the result of coming in contact with an automobile while crossing a city street.
The plaintiff complains of the giving of a certain instruction, and the refusal of others.
March 7, 1924, about 9:30 at night, the defendant in company with an associate was driving his open Buick automobile northeasterly along Mission Street in the city of San Francisco. They were going to the Ferry Building and had reached a point in the vicinity of Action Street, traveling at the rate of fifteen or eighteen miles per hour along a course midway between the most easterly rail of the track and the easterly curbing. Suddenly they observed midway in the block, some twenty or twenty-five feet distant, a pedestrian hastening across Mission Street from the westerly to the easterly side where his car was parked. He had just passed the easterly rails of the track, and apparently *724 neither heard nor saw the approaching machine. The street was poorly lighted at this point. The lights from the automobile disclosed objects only fifty or sixty feet ahead of the machine. There were no other vehicles or pedestrians in sight. There were no witnesses to the accident except the occupants of the defendant's machine and the evidence is uncontradicted to the effect that the defendant immediately upon seeing the pedestrian sounded the horn and applied his foot-brake. There is no evidence of any attempt to use the emergency brake. The deceased was struck by the left front fender of the machine, which was badly damaged; the left plate-glass windshield on the machine was shattered from the impact; the machine ran some forty feet after the brake was applied before it was stopped. The body of the deceased lay near the easterly rail of the track from ten to twenty feet from the rear of the car. He was unconscious and was taken by the defendant to the hospital. An immediate examination by the hospital physician disclosed the fact that the injured man was suffering from a basal fracture of the skull; a broken fibula of the right leg, and numerous bruises and contusions about the face and head. He was also bleeding from the nose and ears. There was no evidence of liquor on his breath. He never recovered consciousness and died from the effects of these injuries a few days later.
The uncontradicted evidence of expert witnesses indicate from actual experiments that a similar Buick automobile traveling on a level pavement at the rate of twenty miles an hour could be stopped within seventeen feet by the application of the foot-brake alone; that the same machine traveling at the rate of fifteen miles per hour could be stopped within the space of twelve feet, and that properly adjusted headlights should disclose objects two hundred feet in advance of the car.
At the request of defendant the following instruction was given to the jury: "I instruct you that in the exercise of ordinary care for his own protection, the deceased was under the duty of looking to the south on Mission Street before he crossed to the east of the center line of Mission Street in order to ascertain whether any vehicles were approaching from the south, and if so, whether any such vehicle was within such a distance as would make it *725 hazardous for the deceased to attempt to cross in front of such vehicle. If you find from the evidence that the deceased negligently failed to use such ordinary care for his own safety and protection and that such failure, if any, proximately contributed to the accident, then your verdict must be in favor of the defendant."
This instruction was given the full literal force of its language by a refusal to give the following instructions requested by plaintiff: (a) "I instruct you that in the absence of evidence to the contrary, there is a legal presumption that the deceased used due care on his part," and (b) "I instruct you that in the absence of any evidence to the contrary the law presumes that the deceased did everything that a reasonable, prudent man would have done under the same circumstances for the protection of his own safety."
[1] Plaintiff's last two instructions, which were refused, correctly stated the law (Crabbe v. Mammoth Channel G. Min.Co.,
In the case of Nickell v. Rosenfield,
The vice of the foregoing instruction which was pointed out by the court is that it attempts to specify in too great detail as a matter of law, the precise acts of a pedestrian in attempting to cross a street, which would constitute negligence. The court there said: "The placing of too high a duty upon plaintiff might leave the jury generally impressed that the decree of care incumbent upon her for her own protection was far greater than the law required."
[5] Ordinary care is all that is required of a pedestrian in crossing a street. The question of the exercise of ordinary care is largely a question of fact to be determined by the jury from all the circumstances surrounding the particular case under consideration. [6] In determining whether a pedestrian used such due care as is commensurate with apparent present dangers the jury should consider the location involved, the existing state of the traffic, the opportunity for obtaining a clear view of the street from every direction whence approaching vehicles might endanger an attempt to cross the street; the presence of obstructions to the view such as buildings, passing cars, driving storms, clouds of dust, or darkness, and from these and all other facts and circumstances present, determine whether the particular pedestrian used that degree of care which would be required of an ordinarily prudent person under like circumstances.
In Burgesser v. Bullock's,
[7] The rule is firmly established that neither pedestrians nor vehicles have any superior right to the use of a public street. (Mayer v. Anderson,
In support of the foregoing objectionable instruction given to the jury in this case the respondent relies upon Sheldon v.James,
Finally, the respondent cited with confidence in support of this objectionable instruction, the concurring statement of the supreme court in denying a rehearing in the case of Finkle v.Tait,
The opinion of the appellate court, which was approved in this case, was written chiefly upon the theory that plaintiff failed to establish proof of any negligence on the part of the defendant. In denying the rehearing the supreme court, however, does assert that the deceased was guilty of contributory negligence, and stresses the fact that at the time of the accident he carried upon his shoulder a box, which the court apparently assumed obscured his view, and the carrying of which under such circumstances, might constitute negligence. We do not understand that the supreme court meant to infer that merely because a pedestrian was struck, while crossing a street at night, by an automobile with lights in good condition that, therefore, the pedestrian must have seen the machine and hence was guilty of negligence. Clearly, this would be speculative and would be usurping the province of the jury. But what the court did say, and what seems entirely logical, was that a pedestrian crossing a street in the dark, with his view obscured by a box which he carried on his shoulder, would be guilty of negligence under the particular facts of that case. *730
But under no circumstances can that case furnish authority in support of the problem involved in the instant case, for in the Finkle case the defendant was not deprived by the refusal of appropriate instructions, of the benefit of the presumption of law to the effect that, in the absence of evidence to the contrary, he was deemed to have acted with reasonable prudence. Nor was an instruction given in the Finkle case, based upon a total absence of evidence, charging the deceased with contributory negligence for the omission of an act, the burden of proving which rested on the defendant.
Because of error in the giving and refusing of the instructions heretofore referred to, we are of the opinion that the judgment should be reversed. It is so ordered.
Nourse, J., and Sturtevant, J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 3, 1927.