Sanal v. Meador

Plaintiff appeals from a judgment in favor of defendant Meador in an action for damages arising out of an accident in which plaintiff was injured when she was struck by defendant’s automobile as she was crossing Glen-oaks Boulevard at Colgin Court, in the city of Burbank.

The action was first tried to a jury, but after the jury disagreed was submitted to and decided by the trial judge. The court found that defendant was not negligent in the operation of his automobile, and that plaintiff was guilty of contributory negligence. These findings are challenged as being without support in the evidence. It is also contended by plaintiff that the court failed to make its findings upon the most important factual question in the case, namely, whether plaintiff, when she was struck, was in an unmarked crosswalk.

Glenoaks Boulevard, a north and south street, is approximately 60 feet in width. Colgin Court is located on the east side of Glenoaks between Santa Anita Avenue to the north, and Providencia Avenue to the south. It is 15 feet 6 inches in width between curbs and has narrow sidewalks extending along its northerly and southerly lines. There are many small houses, placed side by side, facing the court. Opposite Colgin Court, and extending westerly from Glenoaks, is an alley of the same dimensions as Colgin Court. At about . 5:15 p.m. on the 29th day of October, 1949, plaintiff drove

The court found that defendant was not negligent, and that plaintiff was guilty of contributory negligence.

A primary factual question was whether plaintiff was in a crosswalk. The complaint read in paragraph V as follows: “. . . the plaintiff was walking across said Glenoaks Boulevard at or about the northerly intersection of said Glenoaks Boulevard with Colgin Court, and at and in the usual and regular crossing for pedestrians on said street, at said intersection.” This was considered during the trial as a sufficient allegation that plaintiff was in a crosswalk, and evidence was introduced as to whether a crosswalk existed and whether plaintiff was in it. The court made the follow

If plaintiff was in a crosswalk she had the right of way over vehicles (Veh. Code, § 560); if she was crossing Glen-oaks at a point other than within a crosswalk it would have been her duty to yield the right of way to vehicles (Veh. Code, § 562). Failure to yield the right of way is negligence. The duties of the respective parties in this respect lay at the very foundation of their conduct from which negligence or the absence of negligence was to be found, All the witnesses who testified to plaintiff’s position placed her at or about the northerly line of the intersection. The undisputed evidence was that defendant’s ear traveled about a car length after striking plaintiff and came to rest with its rear end at the north line of the intersection. Plaintiff lay in the intersection a few feet ahead of the car. Her car, which she had just left, was parked at the north line of the intersection. It was not disputed that she was traveling straight across Glenoaks. We must resolve the ambiguity of the finding in the light of this evidence, and we cannot construe it as a finding that plaintiff was not struck at the north intersection of the two roadways. In view of the fact that the court made a finding on the subject it was clearly the intention to find that a crosswalk did or did not exist. Defendant contended at the trial there was no crosswalk, and introduced evidence which he claimed, and still claims,

The next question is whether the evidence supports this finding. Defendant’s contention is that the area covered by the cement sidewalks was never dedicated as a part of Colgin Court. He introduced testimony given by a deputy city engineer to the effect that the city of Burbank does not maintain the sidewalks. Belying upon these facts he insists that no crosswalks existed across Glenoaks. This contention requires consideration of one of the court’s findings, certain sections of the Vehicle Code, and also the circumstances under which Colgin Court became a street and the uses that have been made of it.

The complaint alleged, the answer admitted, and the court found that Glenoaks Boulevard and Colgin Court were and are public highways in the city of Burbank, intersecting at approximate right angles. Therefore they were streets within the definition of section 81 of the Vehicle Code which defines a street as: “A way or place, of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.” The paved area of Colgin Court between curbs was a roadway, which is defined by section 83 of the Vehicle Code as “that portion of a highway improved, designed or ordinarily used for vehicular travel.” A sidewalk is defined by section 84 of the Vehicle Code as “that portion of a highway, other than the roadway, set apart for pedestrian travel.” One of the definitions of a crosswalk in section 85 of the Vehicle Code is: “That portion of a roadway ordinarily included within the prolongation or connection of the boundary lines of sidewalks at intersections where the intersecting roadways meet at approximately right angles, except the prolongation of any such lines from an alley across a street.” It necessarily follows that if the sidewalks were part of the street (Colgin Court), those portions of Glenoaks included within the prolongation of the lines of such sidewalks were crosswalks.

Colgin Court was accepted as a public street by ordinance of the city of Burbank adopted in 1938. On the original subdivision map it was designated as an alley and this alley now extends westerly from Glenoaks. It does not appear in the evidence when the court was first laid out, although it does appear that that area has been a part of the city of Burbank since 1927. The ordinance by which Colgin Court was accepted by the city as a street described it as extending

Defendant relies heavily upon the testimony of the deputy city engineer that although the roadway of the court is maintained by the city, the sidewalks are not, and he contends that unless they have been so maintained they are private walks and not subject to public use. We attach little importance to this testimony. It meant only that the city had done nothing for the maintenance of the sidewalks. Although under section 81 of the Vehicle Code a way or place becomes a street if it is publicly maintained and open for public vehicular travel, the mere fact that over a period of years an existing street, including sidewalks, has not re

Defendant calls attention to the testimony of two witnesses, each of whom testified that immediately before she was struck plaintiff took a step toward the car, and “whirled.” Defendant argues that if plaintiff had not taken this step she would not have been struck by his ear and that for this reason alone the court was justified in finding that defendant was not negligent and plaintiff was guilty of contributory negligence. We cannot agree. The fact that plaintiff took a false step when confronted with sudden danger would be of slight importance in deciding the questions of negligence and contributory negligence, as compared with the fact as to her position—whether within or outside a crosswalk. It would not only be unfair and unjust to plaintiff and the trial court, but also an unwarranted assumption of fact, for us to say that the trial court’s conclusions as to negligence and contributory negligence would have been the same if it had been found that plaintiff was standing in a crosswalk.

The judgment is reversed.

Wood (Parker), J., and Vallée, J., concurred.

A petition for a rehearing was denied February 15, 1952, and respondents’ petition for a hearing by the Supreme Court was denied March 24, 1952. Schauer, J., was of the opinion that the petition should be granted.