Kelly v. Fretz

These two cases were consolidated for trial and are appealed on the same transcript. Though separate

The evidence of the negligence of Madeline Fretz in the operation of the car is admittedly sufficient to sustain the verdict against her, and, therefore, does not need restatement. Her defense of the contributory negligence of both parties was the real issue in both cases. She testified that as she approached the intersection a large neon sign, stretched across the highway for advertising purposes, cast a shadow north of the intersection, that before she reached the middle of the intersection she saw the women running across the highway in this shadowed space, and applied her brakes at the middle of the intersection. The undisputed evidence shows that Mrs. Beatrice Kelly was struck at a point twelve feet west of the easterly curb of the highway, and that the skidmarks caused by defendant’s tires commenced at the middle of the intersection. Police officers who were almost immediately on the scene testified that the point of impact was twelve feet west of the easterly curb and from fifteen to seventeen feet north of the pedestrian lane. Jean Kelly denied that that they were running across the highway, that they were north of the pedestrian lane, and that she had seen defendant’s car or its lights at any time prior to the collision. Other witnesses who crossed the highway immediately in front of these parties, and who were called as witnesses by them, testified that they saw the lights of defendant’s car two or three blocks down the highway.

Upon this evidence the parties went to the jury on the issue of contributory negligence, and the first point raised by this appellant, which is common to both cases, is that the trial court improperly instructed the jury as follows: “In an action for death of a pedestrian struck by an automobile, the deceased is presumed to have exercised ordinary care for his or her own safety, and this presumption is sufficient to constitute prima facie evidence that the deceased at the time of the death was free from contributory negligence.” And “It is not contributory negligence as a matter of law for a pedestrian to cross at a place other than an established crossing,

The objection to the instructions is that, since there was full, ample, and complete evidence as to what the parties did or did not do, there was no room for the presumption that they were “free from contributory negligence”; that, since the evidence as to what the injured parties did or did not do was conflicting, it was the province of the jury to resolve that conflict in the light of the testimony offered, and that the court could not say that the jury might disregard all the direct evidence of contributory negligence and find the parties free from such negligence on the presumption alone. It might be added that, with a single exception, all the direct evidence showing what the parties did or did not do came from plaintiffs’ witnesses. The single exception was the testimony of the defendant that she saw the women running across the highway at a point north of the pedestrian lane, but, in respect to the point of crossing, this testimony was in harmony with that of witnesses called by the plaintiffs, but in conflict with that of Jean Kelly. It was the province of the jury to resolve this conflict under proper instructions. In such a case there is no room for an instruction that the party is presumed to have been free from contributory negligence. (Paulsen v. McDuffie, 4 Cal. (2d) 111 , 119 [ 47 Pac. (2d) 709 ] ; Rogers v. Interstate Transit Co., 212 Cal. 36 , 38 [ 297 Pac. 884 , 886] ; Butcher v. Thornhill, 14 Cal. App. (2d) 149 [ 58 Pac. (2d) 179 , 184] ; Lewin v. Margolis, 14 Cal. App. (2d) 746 [ 59 Pac. (2d) 153 , 155] ; Tuttle v. Crawford, 8 Cal. (2d) 126 , [ 63 Pac. (2d) 1128 ].) It was said in the Rogers case: “Whatever the rule may be when evidence contrary to the presumption is produced by the adverse party, it is well established in this state that a presumption in favor of a party is entirely dispelled by the testimony of the party himself or of his witnesses. (Mar Shee v. Maryland Assur. Corp., 190 Cal. 1 , 9 [ 210 Pac. 269 ].)”

Here, by the direct evidence of plaintiffs’ witnesses, it was shown that the parties were crossing the highway at a point beyond the intersection, and the defendant testified that the large neon sign over the highway east a shadow at that point. If the jury believed this testimony it might have had some weight on the question of contributory negligence. But it was the province of the jury to determine that issue in

Mrs. Kelly sued for the “severe nervous shock to her entire nervous system” alleged to have resulted from the negligence of defendant in causing the automobile "so closely, swiftly and suddenfy to pass said Jean Kelly as to frighten said Jean Kelly”. This witness testified that she crossed the highway directly in front of her mother-in-law, that she did not run, that she did not see the defendant’s car at any time before the collision, that she did not see its lights which were admitted to have been burning at the time, and that after she reached the sidewalk she lifted herself up with her little boy and then heard the crash of the car striking her mother-in-law. The undisputed evidence is that the point of this “crash” was twelve feet west of this curb. If Jean Kelly was not running at that time, and if she did not see the car or its lights, it would, of course, have been impossible for her to have been struck, pushed or brushed by the car which crashed into her mother-in-law twelve feet from the curb after Jean Kelly had landed on the curb and had had time to arise from it with her child. During her examination, her counsel stipulated that she had not been struck by the car; she would not testify that she had been pushed or brushed by the car, statements of her counsel to the contrary notwithstanding. She testified that she felt “something” push or brush her, but that might have been her child or some other pedestrian, and, since she did not see the car or its lights, it is manifest that she was not pushed or brushed by it.

The issue in this case is clear. The plaintiffs sued for the injuries resulting from the fright caused Jean Kelly by the defendant’s acts. She was not frightened by the approach of the automobile because she had no knowledge of it. After • the crash, and while she was on the sidewalk she had no fear for her own safety, but could have had fear for the safety

The judgments are reversed with directions to enter judgments for Ellen Story Fretz, Paul Fretz and Mrs. Paul Fretz, and to retry the issues as to Madeline Fretz.

Sturtevant, J., and Spence, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on March 27, 1937, and an application by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 26, 1937.