Devecchio v. Ricketts

Plaintiff instituted this action for the recovery of damages on account of personal injuries and loss of time suffered by reason of having been run into by an automobile driven by an employee of the defendants. The defendants had judgment and the plaintiff, appeals.

It appears from the pleadings and transcript in this case that on or about 6:30 A. M. on the tenth day of January, 1922, while the plaintiff was walking along a certain street in the city of Madera known as Yosemite Avenue in the direction of Pine Street on the way to his employment, he was run into by an autotruck belonging to the defendants, then being driven by an employee named Adams; that this truck was traveling in the same direction with the plaintiff and ran into him from the rear; that no horn or bell was sounded to indicate the approach of the autotruck but that the truck was loaded with some eight or ten empty milk cans; that the morning was more or less foggy and consequently more or less dark; that the plaintiff was walking a little to the right of the center line of said street; that there was no sidewalk along either side of said street; but that on the left-hand side there was a footpath; on the right-hand side, a strip of grass .some ten feet in width; that between the place where the plaintiff was walking and the left-hand side of the street there was a distance of some twenty-five or thirty feet of open and unobstructed way; that it further appears that the plaintiff was wearing an overcoat and had the collar turned up. The plaintiff was quite seriously injured, but the extent thereof is not found by the court. It also appears from the transcript that Adams, the employee of the defendants, who appears to have been out of the state at the time of the trial and whosé testimony was not taken, did not see the plaintiff until he had run into him. This appears from the testimony of one of the defendants brought out by the examination of the defendants’ counsel.

“4. That it is not true that plaintiff was not warned of the approach of said truck in any manner but it is true that said Adams did not prior to said collision sound horn or bell; but in this connection the court finds that said truck was filled with large empty milk cans and that the noise made by said truck and cans was audible to persons of ordinary hearing for a distance of several blocks, and plaintiff could easily have heard said truck had his hearing not been cut off and interfered with by his said overcoat which covered his ears.

“7. That upon the morning of said collision and at the time and place of the occurrence thereof there was a fog which rendered it impossible for a person in charge of a motor vehicle to see a great distance ahead; that there was a footpath paralleling the road at the time and place where said collision occurred for the use, convenience and safety of pedestrians; that on the other side of said road was an open space where a pedestrian might travel in safety, all of which facts were well known to plaintiff. The court finds that the plaintiff, had he exercised ordinary care and precaution, would have walked on said footpath on said morning, and the court further finds that in the exercise of reasonable care and precaution plaintiff would not have covered his ears with his overcoat in such fashion as to cut off, impair and interfere with his hearing. ’ ’

Founded upon these findings, the court drew the following conclusion:

“1. That said defendants and neither of them, neither through themselves or through their agents, have not been guilty of any recklessness, carelessness or negligence in this cause, but plaintiff by reason of the facts found as aforesaid was reckless, careless and negligent, and the collision complained of in plaintiff’s complaint was due to the recklessness, carelessness and negligence of said plaintiff, and not otherwise.”

It will be observed that the court bases its decision upon this fact that the plaintiff was walking on the traveled portion of the highway instead of on the footpath paralleling the road; that in the exercise of ordinary care and precaution he would have walked on the footpath on said morning;

The court also bases its conclusion in part upon the fact that the truck was loaded with empty milk cans which doubtless made considerable noise.

The court finds, however, that no horn was blown or signal given by the driver of the truck of his approach. [1] The mere fact that the truck was loaded with empty cans is not sufficient and was not sufficient to comply with the law in giving notice, as the Motor Vehicle Act read at the time of the injury complained of. Section 12 of the Motor Vehicle Act, approved May 10, 1915 (Stats. 1915, p. 405), which was in force on the tenth day of January, 1922, specified that: “Every motor vehicle shall be equipped with a bell, gong, horn, whistle, or other device in good working order, capable of emitting an abrupt sound adequate in quality and volume to give warning of the approach of such vehicle to pedestrians. . . . Every person operating a motor vehicle shall sound said bell, gong, horn, whistle or other device whenever necessary as a warning of danger, ...” The fact, if it is a fact, that the car was equipped with lights or that the truck was loaded with milk cans is not sufficient to comply with the statutes, as appears from the case of Woodhead v. Wilkinson, 181 Cal. 599 [ 10 A. L. R. 291 , 185.Pac. 851], The court in that case said: “Admittedly, plaintiff saw the glare from his headlight and knew that a car was coming up from behind; therefore (so defendant argues), there was no use for an alarm and the laws of California do not require the sounding of a horn unless one means to pass another person or vehicle, and defendant, being about to stop, was not under the rule. The mere fact that plaintiff could see the glare of defendant’s headlights was not enough. True, it apprised her of his approach, but not of the fact that he was leaving the paved portion of the road and running partly to the north thereof. She was justified in assuming (as she says she did) that he was following the usual custom of drivers. (Lawyer v. Los Angeles Pac. Co., 161 Cal. 53 [ 118

In drawing its conclusion the learned trial judge appears to have been of the opinion that it was negligence for the plaintiff to be walking upon the highway in question. There is no showing that it was a much-traveled street, the testimony of the plaintiff being all the testimony called to our attention on that subject, and that is to the effect that he had never seen an automobile on that street at that time of the day, and that he was accustomed daily to use that street in going to his place of employment.

So far as the state of California is concerned, the right of pedestrians or foot-passengers to use the streets has not been modified. [2] The rule in this state is clearly set forth

In Randolph v. Hunt, 41 Cal. App. 739 [ 183 Pac. 358 ], the law in relation to the use of highways by pedestrians is stated as follows: “The fact that a pedestrian who is i,, injured by an automobile is walking on the left-hand side * of the' highway does not, of itself, constitute contributory negligence. A pedestrian has a right to use all parts of a road or street, being chargeable with the exercise of a reasonable degree of care to be determined under all the circumstances.” [4] The rule of reasonable precaution which the law enjoins upon a driver of an automobile upon a public highway includes the necessity of making certain that foot-passengers are aware of the rearward approach of the vehicle; that the vehicle itself is at such a distance from the pedestrian as to avoid running over him in his sudden panic from surprise at knowledge of its unexpected approach, and, finally, that the vehicle is under such control as that it may be stopped promptly.

In the case of Deputy v. Kimmell, 73 W. Va. 595 [Ann. Cas. 1916E, 656, 51 L. R. A. (N. S.) 989 , 80 S. E. 919 ], and elaborately annotated, we find the following statement of the law applicable herein: [5] “A person lawfully in a public highway may rely upon the exercise of reasonable care by drivers of vehicles to avoid injury. Failure to anticipate omission of such care does not render him negligent. A pedestrian is not bound, as a matter of law, to be continuously looking or listening to ascertain if automobiles or other vehicles are approaching, under penalty that if he fails to do so and is injured, his own negligence will defeat recovery of damages sustained.”

[6] The plaintiff in this case was where he had a right to he. The testimony shows that there was plenty of room for the driver of the automobile truck to have passed him on the left-hand side. The time of day when the injury occurred was such that the law required the truck to be equipped with lights sufficient to enable the driver to perceive the person of others who might lawfully be using the

[7] The testimony in this ease, as well as the findings of the court, show that the plaintiff, at the time of the injury complained of, was where he had a legal right to be; there is nothing in the testimony nor in the findings of the court which shows that the plaintiff varied his- movements, or suddenly crossed the path of the oncoming automobile; the plaintiff was traveling in the same direction as the automobile and was under no legal compulsion to he continually looking around to ascertain if anyone was about to run him down; the testimony shows and the finding of the court is that no warning signal was given by the driver of the approaching autotruck. The testimony also shows that there was plenty of space on the highway for the truck to have passed the plaintiff without danger of collision. These facts certainly make out a prima facie case and east upon the defendants -the burden of showing that the driver of the truck was complying with the law and taking all precautions which the circumstances of the ease required in order that his use of the highway might not be to the injury of anyone who was lawfully thereon. The only showing made by the defendants was that the plaintiff was protecting himself from the cold at that early morning hour. Among other things, as we have said, the trial court found as follows: “The court finds that the plaintiff, had he exercised ordinary care and precaution, would have walked on said path on said morning. ...” And the conclusion of law was drawn that he was negligent in so doing. [8] In support of this finding and conclusion, the respondents argue as follows: “Moreover his negligence did not end here, but in disregard of his own safety he was walking in the road although there was a well-defined footpath paralleling this road on one side and a clear space on the other side of the road, in either of which

We think that the findings are not supported by the evidence and that the judgment is not supported by the findings. It is therefore ordered that the judgment of the trial court be and the same is hereby reversed.

Hart, J., and Pinch, P. J., concurred.