110 Cal. App. 2d 345 | Cal. Ct. App. | 1952
Here is the record of an unfortunate episode in the life of Jacob Rubin. He was a pedestrian, .52 years of age at 9:15 p. m. on March 2, 1949. While in the act of crossing Alvarado Street, a north-south thoroughfare in Los Angeles, he was run down by appellant. The latter, driving westerly on 12th Street, came to a stop at Alvarado. It was dark; the streets were paved, wet and sleek. As respondent stood on the southwest corner ready to cross Alvarado to its east side, he observed appellant’s car approaching Alvarado at a distance of about a half block to the east. Its headlights were visible over 200 feet away. Giving signal for a left turn, appellant started westward in low gear. When he had almost completed the turn, respondent, clad in dark clothes, having started easterly with the. green light, suddenly loomed before appellant about 6 feet west of the vehicle. Respondent had not continued to watch the car as he started to make the crossing. He testified he saw it next when it was within 2 feet of him in the crosswalk. Basing the decision upon its determination of the
By these appeals appellant seeks first a reversal of the order setting aside the first judgment. Also, he demands a reversal of the second judgment on three grounds, to wit; (1) the court had no jurisdiction to vacate the first judgment and to order the preparation of findings and entry of the second judgment; (2) error in denying a new trial on the ground of newly discovered evidence; (3) plaintiff’s actions constituted contributory negligence as a matter of law.
The recital in the first judgment that findings were waived was merely a clerical error. Where some provision of, or omission from, an order or judgment as rendered was due to the inadvertence or mistake of the court it is properly treated as a clerical misprision rather than as a judicial error. (Morgan v. State Board of Equalization, 89 Cal.App.2d 674, 677 [201 P.2d 859].) Accordingly, the court had inherent power either on its own motion, or on ex parte application, or on notice, to set aside the erroneous judgment signed through inadvertence. (Estate of Costa, 37 Cal.2d 154, 157 [231 P.2d 17]; Morgan v. State Board of Equalization, supra, p. 677.)
The asserted basis of appellant’s motion for a new trial was that he had newly discovered evidence. It consisted of the pleadings in a suit filed by respondent Rubin against Clifton’s Cafeteria for damages resulting from personal injuries allegedly suffered by Rubin. The complaint in that action alleged damages which substantially duplicated the claims made in the instant suit against DeLao. Appellant
The third proposition advanced as the basis for a reversal of the judgment is that the evidence of respondent’s conduct compels a finding that he was guilty of contributory negligence as a matter of law. Although in the absence of a brief on behalf of respondent we are privileged to accept as true the statement of facts appearing in appellant’s brief (Rules on Appeal, rule 17(b)) yet the record reveals that respondent’s actions do not necessarily indicate negligence on his part. The established facts prove that respondent was struck in a crosswalk by appellant’s vehicle while respondent was attempting to cross Alvarado Street. Respondent admitted having seen the automobile when it was approximately one-half block east of Alvarado. There was further testimony that respondent stated that he had seen the car commence the left-hand turn, but that he apparently proceeded easterly in the crosswalk on the assumption that appellant would yield the right of way.
While such evidence could have sustained a determination that respondent was negligent in proceeding forward as he did, the reviewing court cannot say that the trier of fact necessarily must as a matter of law have derived such finding. The instances in which it must be held that one is guilty of contributory negligence as a matter of law are extremely rare. Only when we conclude that reasonable minds could not conscientiously have found to the contrary will the reviewing court interfere with the findings of the trier of facts. (Anthony v. Hobbie, 25 Cal.2d 814, 818 [155 P.2d
Order and judgment affirmed. Appeal from first judgment (18396) dismissed.
McComb, J., and Fox, J., concurred.
A petition for a rehearing was denied April 29, 1952.