Zehnder v. Spaulding

This appeal, which is prosecuted from a judgment awarding the sum of $2,000 damages to plaintiffs for injuries sustained by them in a collision between their automobile and one driven by defendant Raymond R. Spaulding, a minor, is presented to this court upon an engrossed bill of exceptions. From said bill of exceptions and the statements of fact contained in the briefs, it appears that said collision occurred under the following circumstances:

On May 25, 1941, the respondent John E. Zehnder,-accompanied by his wife, respondent Alice Zehnder, was driving a De Soto automobile in a southerly direction along Haskell Avenue, an unpaved highway twenty feet in width running north and south through a sparsely-settled section of San Fernando Valley in the city and county of Los Angeles. As the De Soto approached the intersection of Haskell Avenue with Lassen Avenue, a paved highway running in an easterly and westerly direction, the paved portion thereof being twenty feet in width, the view to respondents’ right was completely obscured by a row of trees growing along the westerly side of Haskell Avenue until they reached a point twenty to twenty-five feet north of the northerly curb line of said Lassen Avenue. Traveling at the rate of fifteen miles per hour, respondents at this point looked to their right and were able to see westerly along Lassen Avenue a distance of 200 feet. They saw no automobile on the highway within said distance of 200 feet, but they did observe a pedestrian walking in a westerly direction on Lassen Avenue about 100 or 150 feet west of its intersection with Haskell Avenue. Respondents then looked to their left in an easterly direction

Appellant Raymond R. Spaulding testified that he did not see respondents or their automobile until the moment of the impact.

Appellants urge that the court erred as a matter of law in making its findings of fact to the effect that respondent John E. Zehnder was operating his automobile “in a prudent manner” at the time of the accident, and that said respondent was not guilty of contributory negligence. In this connection, appellants argue that respondents’ “action in looking to their right while at a distance of from 20 to 25 feet from the intersection curb line, and where their vision was limited to a distance of only 200 feet up Lassen avenue, is tantamount to not looking at all; at least it is not looking on entering the intersection, and constitutes contributory negligence as a matter of law.” In support of their contention, appellants quote the following excerpt from the case of Holibaugh v. Ito, 21 Cal. App. (2d) 480 , 486 [ 69 P. (2d) 871 ] ; “. . . it is the duty of the driver of a vehicle which is approaching an intersection of highways where other vehicles are liable to pass, to look both ways before entering such intersection.” (Italics added.)

.The record reveals as a matter of fact that respondents did look both ways before they crossed the twenty-foot paved

It is only “When a person takes no precautions at all for his own safety and is injured, and this conclusion is uncontroverted, [that] contributory negligence is a question to be decided by the court. (White v. Davis, 103 Cal. App. 531 , 542 [ 284 Pac. 1086 ] ; Stephens v. Kaufmann, 137 Cal. App. 328 , 331 [ 30 P. (2d) 536 ].) If evidence is introduced relative to the degree of requisite vigilance, and the inferences therefrom are honestly debatable, it becomes a question of fact for the jury to determine. (Gore v. Market Street Ry. Co., 4 Cal. (2d) 154 [ 48 P. (2d) 2 ] ; Salomon v. Myer, 1 Cal. (2d) 11 , 15 [ 32 P. (2d) 631 ] ; Anderson v. Market St. Ry. Co., 116 Cal. App. 282 , 285 [ 2 P. (2d) 529 ].) In the instant case whether respondent looked in the direction from which appellant was approaching, whether the point from which observation was made was prudently selected, whether respondent should have seen appellant’s car within a distance of sixty feet, whether respondent should have looked north and south, or north alone, and whether due vigilance was observed continuously, were disputable questions of fact upon which reasonable minds might legitimately debate and honestly reach different conclusions. The question was properly submitted to the jury, and its finding under all the circumstances of the case is conclusive upon appeal. ’ ’ (Lavin v. Fereira, 10 Cal. App. (2d) 710 , 712 [ 52 P. (2d) 518 ].)

In the instant case whether respondents, particularly the

In the circumstances presented by the record herein, there was no error on the part of the trial court in making the findings of fact complained of.

For the reasons stated, the judgment is affirmed.

Doran, J., and White, J., concurred.