Kirk v. Los Angeles Railway Corp.

Plaintiff was nonsuited in an action for personal injuries claimed to have been received as the result of defendant’s negligence.

Broadway, a north-south street, crosses at right angles Seventh, an east-west street in the city of Los Angeles. Both streets have double streetcar tracks on them. The traffic at the intersection is controlled by a traffic light. At 11 o’clock at night defendant was operating a southbound streetcar on its west track on Broadway. Plaintiff, a pedestrian, was proceeding west across Broadway on the south side of Seventh in the middle of the lane marked for pedestrians. She was accompanied by two men, one on each side of her. When she left the east curb on Broadway the traffic signals were in her favor. Two lines of cars were waiting on her left for a change of signal. When she was between the rails of the east streetcar tracks the east-west traffic signal changed to “Stop.” A few seconds later, and when she was close to the west tracks, she saw the streetcar approaching. One of her companions grasped her arm, calling her attention to the approach of the streetcar. Her purse, which she was carrying under her right arm, fell to the street some two feet west of the west tracks. In plaintiff’s language the following occurred: “Q. What happened to the contents of the purse? A. They were scattered about. Q. Did you continue on across the street after the purse was knocked out from under your elbow? A. Well, without pausing, I attempted to retrieve the purse. Q. How did you do that, what did you do? A. Well, I just bent slightly and grabbed it up as I went. Q. Did you ever succeed in getting it in your hand? A. I don’t know, I was knocked unconscious. The Court : You say you grabbed it up or grabbed at it? A. Grabbed at it. Q. By Mrs. Gramer: What movement did you make in grabbing at it; were you still in motion, your legs still moving? A. I was. Q. Did you ever stop or stand still even for a split second? A. Not to my recollection.” The right front of the streetcar struck plaintiff’s right hip while she was in a stooping position. The streetcar was traveling 10 to 12 miles per hour when it was crossing Seventh Street. Plaintiff’s two companions reached the west curb of Broadway in safety.

It is well settled that it is the duty of the trial court to deny a motion for a nonsuit at the close of plaintiff’s case, “if there is . . . any substantial evidence, which, with the aid of all legitimate inferences favorable to the plaintiff, tends to establish the averments of the complaint, or, in other words, where the plaintiff’s evidence is sufficient to support a judgment on the verdict. It should deny a nonsuit even where there is a conflict in the evidence and some evidence tends to sustain the plaintiff’s case, or when the evidence of the plaintiff is such that different conclusions can reasonably be drawn therefrom. If there is any doubt, it is the duty of the court to let the case go to the jury.” (9 Cal.Jur. 558-9.)

The uniform rule which an appellate court should follow in disposing of an appeal from a judgment of nonsuit is, that the court must view the evidence in the light most favorable to appellant, must disregard all inconsistencies and

Defendant urges that plaintiff was contributively negligent as a matter of law in three respects. .(1) In looking in the direction of the streetcar as she left the east curb of Broadway, but nevertheless proceeding even though the car must have then been in motion if it violated the traffic signal; (2) proceeding in front of the car when it was approaching after she was on the west-east track; (3) in stooping to retrieve her purse.

In considering those contentions, the rule, as recently stated by this court in Anthony v. Hobbie, 25 Cal.2d 814 , 818 [ 155 P.2d 826 ], is applicable:

“But cases in which it can be said that the negligence of plaintiff contributes proximately to the accident' as a matter of law are rare. The rule has been stated in various ways in a legion of cases, that contributory negligence is not established as a matter of law unless the only reasonable hypothesis is that such negligence exists; that reasonable or sensible men could have drawn that conclusion and none other; that where there are different inferences that may be drawn, one for and one against, the one against will be followed; and that before it can be held as a matter of law that contributory negligence exists, the evidence must point unerringly to that conclusion.”

Plaintiff was justified in leaving the east curb of Broadway inasmuch as the traffic signal was in her favor. Whether or not she should have observed that the streetcar had started forward at that time, and if it had, whether she was aware of the danger, were for the jury to decide. Moreover, a pedestrian while he is bound to exercise due care when crossing at:'an intersection in the crosswalk with the traffic signal in his favor, yet he has the right of way and may assume that the traffic signal will not be violated by traffic crossing his path, and the issue of his negligence is for the jury. (See Lowell v. Harris, 24 Cal.App.2d 70 [ 74 P.2d 551 ]; Welch v. Sink, 24 Cal.App.2d 231 [ 74 P.2d 832 ] ; King v. Unger, 25 Cal.App.2d 632 [ 78 P.2d 255 ]; Salomon v. Meyer, 1 Cal.2d 11 [ 32 P.2d 631 ]; Collom v. Bloch, 70 Cal.App. 33 [ 232 P. 486 ]; Whitelaw

Defendants rely upon such cases as Gore v. Market Street Ry. Co., 4 Cal.2d 154 [ 48 P.2d 2 ]; Anderson v. Market Street Ry. Co., 116 Cal.App. 282 [ 2 P.2d 529 ]; and McHugh v. Market St. Ry. Co., 29 Cal.App.2d 737 [ 85 P.2d 467 ]. Each case must be viewed according to its particular circumstances. In the cited cases there was no obedience to a traffic signal by the pedestrian or disobedience by defendant as in the instant case. Nor is the instant case one in which the pedestrian blindly and without any care for her own safety walked into the path of an oncoming vehicle, the result of which must necessarily be disaster.

Whether the act of plaintiff in stooping to retrieve her purse was contributory negligence should have been submitted to the jury. She testified that even though she stooped, she continued her forward progress, and being two feet or more past the west tracks, she might, as a person of ordinary prudence, have considered herself in a safe position, and she was very near to such a haven inasmuch as the west steps on the west front side of the ear struck her hip. Under those circumstances it was a jury question whether the act of retrieving the purse was such as would be performed by a person of ordinary prudence. It could be reasoned that such act was an instinctive unthinking effort to preserve property which would be reasonable to expect of a reasonably prudent person having due regard for his safety. It is not a case of momentary forgetfulness which is not induced by some disturbing event, such as existed in Reynolds v. Los Angeles Gas & Electric Co., 162 Cal. 327 [ 122 P. 962 ]; and Brett v. Frank & Co., 153 Cal. 267 [ 94 P. 1051 ], Bather, it was an instinctive reaction or act on sudden impulse which we are unable to say was out of character for a person of ordinary prudence. It is the rule that “Even forgetfulness of a known danger will not operate to prevent a recovery, for to forget is not negligence unless it shows a want of ordinary care. Generally the question is one for the jury.” (Neel v. Mannings, Inc., 19 Cal.2d 647 , 656 [ 122 P.2d 576 ].) Moreover, there were disturbing factors, that is, the busy intersection, the change in traffic signals, the oncoming streetcar, the sudden dropping of the purse to the street. The situation presented is analogous to acts in emergencies. Defendant’s negligence created a

The judgment is reversed.

Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.