Burgesser v. Bullock's

This is an action by the heirs of John Q. Burgesser, deceased, to recover damages due to his death. The trial court instructed the jury to bring in a verdict for the defendants. Plaintiffs appeal. The question presented on the appeal is whether or not there was sufficient evidence to go to the jury. The decedent was killed by a collision between himself and an automobile belonging to the defendant Bullock's, a corporation, and operated by defendant Clopton, its employee. The accident occurred November 29, 1919, at the intersection of West Jefferson Street and Budlong Avenue, in the city of Los Angeles. About 6:15 P. M. of that day the deceased alighted from the front end of a west-bound Jefferson Street car, passed around the front end of such car and in front of the headlight of the car, and was walking across Jefferson Street in a southerly direction toward the curb on the south side of Jefferson Street, when he was struck by the defendant's automobile, proceeding easterly on Jefferson Street. The trial court granted the motion for an instructed verdict in favor of the defendants upon the ground that the decedent was negligent as a matter of law. The trial court evidently arrived at this conclusion because of the testimony of the decedent given by deposition in an action to perpetuate his testimony to the effect that he *Page 675 looked to the left and then to the right toward the defendant's automobile and saw the headlights of the approaching automobile, and continued to observe them while he walked rapidly toward the curb. The opinion of the trial court in granting the motion for the instructed verdict is incorporated in the transcript and it appears that the trial judge was of the opinion that the decedent, having observed the approaching automobile before he entered its path, and having continually observed it thereafter, and having apparently misjudged its speed, was therefore guilty of contributory negligence. The fallacy of the conclusion reached by the trial court results from the assumption that the automobile had the right of way and that it was the duty of the pedestrian to assume that the automobile would continue in its direction without diminishing its speed or yielding to the pedestrian. [1] The law is that neither the pedestrian nor the automobile has a superior right of way, and that each is entitled to use the highway and that the conduct of both must be regulated with reference to this fundamental rule. The decedent testified that when he first saw the defendant's automobile it was about twenty-five feet on the other side of Budlong Avenue and that he had just passed around the front of the street-car and had looked toward the rear of the street-car before starting to cross, and then, looking to his right, saw the headlights of defendant's machine. These lights, he testified, were "low down," apparently meaning that they were dim. He stated it was "very dusk" and he could not see the automobile itself. Whether or not the decedent was negligent in crossing the street in front of the approaching automobile was primarily a question of fact for the jury, and for that reason we do not wish to enter into a further discussion of the matter, for it is sufficient for us to say that the jury might have concluded that the decedent was not negligent in so doing. This case was transferred to the district court of appeal, second appellate district, division two, and an opinion was rendered by that court affirming the judgment of the trial court. That court, in affirming the judgment, relied upon a rule of law which it stated as follows: "A foot-traveler is negligent who fails to look both ways before crossing a highway where vehicles frequently pass. (Niosi v. Empire Steam Laundryet al., 117 Cal. 257 [49 P. 185]; Hamlin *Page 676 v. Pacific Electric Ry. Co., 150 Cal. 776 [89 P. 1109];Spring v. Tawa, 49 Cal.App. 100 [192 P. 1051].)" It is true that an instruction to that effect was given in the first case cited, Niosi v. Empire Steam Laundry et al., supra, and also in the case of Sheldon v. James, 175 Cal. 474, 478 [2 A.L.R. 1493, 166 P. 8]. The same rule is also stated in the case of Davis v. Breuner Co., 167 Cal. 683 [140 P. 586], but these cases must all be read in the light of the facts involved in the particular case. In the case of Niosi v. Empire SteamLaundry et al., supra, the jury had rendered a verdict in the defendant's favor. The plaintiff's own testimony showed that he stepped into the street intersection where the cross-street was about twenty feet wide, without looking toward the left, from which traffic would be expected to come on the side of the street he was entering, and that he was almost instantly struck by the right hub of the front wheel of the laundry wagon, so that apparently the horses drawing the laundry wagon had passed him when he stepped into the street and directly into the side of the wagon. The plaintiff had his attention directed toward some boys fighting farther up the cross-street to his right and did not look at all in the direction from which traffic was to be expected as he stepped from the curb. The real question, therefore, involved was whether or not it was the duty of the pedestrian in entering the street to look toward the direction from which he would expect traffic to approach if it was traveling on the right-hand side of the street he was about to enter. Under these circumstances the approval of the trial court's instruction amounted to no more than an approval of the rule that where a pedestrian steps from a curb into a narrow street where the traffic is heavy, it is his duty to look in the direction from which such traffic would be likely to come before stepping from the curb. In the case of Davis v. Breuner Co., 167 Cal. 683 [140 P. 586], supra, this court was considering the question as to whether or not there was sufficient evidence to justify the finding of the trial court that the pedestrian was negligent. The statement in that case that it was the duty of the foot-passenger to look both ways before starting to cross the street in entering a busy thoroughfare was directed to the *Page 677 propriety of the jury's finding of fact. The jury in that case had found that the pedestrian was negligent. In the case of Sheldon v. James, supra, the instruction given in the case of Niosi v. Empire Steam Laundry et al., supra, was given. A verdict was rendered in favor of the defendant and the plaintiff appealed, claiming that the instruction was erroneous. In passing upon that instruction the court, having in mind the circumstances as disclosed by the evidence, said: "We construe it to be no more than a declaration that in the exercise of ordinary care it is the duty of such a pedestrian to look to the right and to the left whenever he has voluntarily put himself in a position which may be one of peril coming from either direction, and in particular where he has received adequate warning of the likelihood of peril. . . ." The statement just quoted concerning adequate warning related to the evidence in the case that the defendant had blown a horn and that the pedestrian, in disregard of this warning, had, nevertheless, stepped from the sidewalk in front of defendant's approaching machine. [2] The question of whether or not the pedestrian is negligent in crossing a street is one which, in the absence of express statutes regulating his conduct, must ordinarily be left to the jury, for the conduct of an ordinarily prudent person under such circumstances must be largely determined by the condition of the traffic at the particular time and place in question. There may be circumstances under which it can be said that the pedestrian is negligent as a matter of law. For instance, in the case of Finkle v. Tait, 55 Cal.App. 425 [203 P. 1031], in the case of a directed verdict, the district court of appeal affirmed the decision, but, in denying the transfer to this court (Finkle v. Tait, 55 Cal.App. 432 [203 P. 1034]), we sustained the conclusion of the district court of appeal solely for the reason that the pedestrian was crossing the street without looking and under such circumstances that he could not see in the direction from which traffic might be expected. In the case of Mann v. Scott, 180 Cal. 550 [182 P. 281] we adopted a portion of the opinion of Mr. Justice Finlayson, written in deciding the case in the district court of appeal (180 Cal. 550, 554 [182 P. 281, 282]), as follows: "There is no positive duty to stop, look and listen when a *Page 678 pedestrian is about to cross a city street . . . And it may be that if the jurors in this case rejected, as improbable, respondent's testimony that she looked and saw no approaching automobile, they, nevertheless, concluded — as well they might — that if she did see the automobile before leaving the sidewalk, she reasoned that its driver would comply with the city ordinance, referred to in the court's instructions, requiring an automobile traveling behind a street-car to stop ten feet in the rear of the car if it stops to let off or take on passengers, until the passengers have safely alighted from or boarded the car. Whether, if she saw the automobile, respondent would have been warranted in going toward the street-car without further watching the automobile approach, relying upon a compliance by the appellants with the requirements of the ordinance, as a question upon which men's minds might well differ, and hence it was properly a case for the jury . . ." In the late case of Reaugh v. Cudahy Packing Co., 189 Cal. 335 [208 P. 125], we had occasion to again consider the rule with reference to the obligations of a pedestrian in crossing a business street. It is there pointed out that the question of whether or not a pedestrian is negligent is to be determined from all the facts and circumstances in evidence in the case, and whether or not it was the duty of the pedestrian to look in a given direction at a given time was a question for the jury. (See, also, Haines v. Fewkes, 190 Cal. 477 [213 P. 490].) On the other hand, in Klusman v. Pacific Elec. Ry. Co.,190 Cal. 441 [213 P. 38], we sustained the trial court in holding that the pedestrian was negligent as a matter of law in failing to look for an approaching interurban car. It is sufficient for the purposes of a new trial in this case to say that where the evidence showed that the decedent looked in the direction of the approaching automobile and saw the automobile, and, nevertheless, proceeded to cross the street, it is for the jury to say whether or not his conduct with reference to the approaching automobile was, under all the circumstances at the time and place and conditions of the traffic, negligence on the part of the decedent. We have not discussed the question of the negligence of the defendants for the reason that it seems to be conceded *Page 679 by the parties and is assumed by the trial court that there was sufficient evidence of such negligence to go to the jury. Judgment reversed. Kerrigan, J., Lawlor, J., Lennon, J., Seawell, J., Waste, J., and Myers, J., concurred. Rehearing denied. In denying a rehearing the court filed the following opinion on April 21, 1923: