Sunseri v. Dime Taxi Corp.

Plaintiff appeals from a judgment in favor of defendants, rendered upon a verdict, in an action for damages for personal injuries sustained by plaintiff, a pedestrian, as a result of being struck by a taxicab operated by defendants.

There are two defendants in this action, the Dime Taxi Corporation, a corporation, and F. J. Burns, owners of the taxicab. The taxicab driver was not included as a defendant in the amended complaint.

Plaintiff contends the evidence was insufficient to justify the verdict.

The following facts were uncontradicted: At the time of the accident, on March 1, 1941, about 11 p. m., the plaintiff, his wife, sister and brother-in-law intended to go to a bowling alley at 7113 Pacific Boulevard, Huntington Park. It was not raining at the time of the accident, but it had been raining during that day and water covering a space about 4 feet in width was running in the street gutter next to the curb in front of the bowling alley. They went in an automobile, operated by plaintiff, into a driveway near that address and stopped at a place in the driveway where it crossed a public sidewalk. All of the occupants of the automobile except plaintiff alighted therefrom at the place where it stopped on the sidewalk. Plaintiff then backed the automobile into the street and parked it at the curb. While he was returning to the place where his passengers had alighted, he was struck by defendants’ taxicab. Pacific Boulevard was about 100 feet wide and extended north and south. The bowling alley was on the west side of the boulevard. Streetcar tracks were on each side and near the center, of Pacific Boulevard. An employee of defendants, who was driving defendants’ taxicab in a northerly direction on Pacific Boulevard east of the center of the boulevard, turned the taxicab to the left and proceeded west toward the driveway south of the bowling alley. Several cars were parked at the west curb of Pacific Boulevard in the vicinity of the bowling alley. The street and driveway were well lighted and the windshield of the taxicab was clear. Adjoining the bowling alley building on the south side there were 3 business buildings. South of those buildings there was a driveway to a parking lot in the rear of those

Plaintiff testified, in substance as follows: Plaintiff backed the automobile out of the driveway and parked it at an angle to the curb (which was the proper way to park at that place), in the first parking space north of and about 4 feet from that driveway. As parked, the left front door of the automobile was farther from the curb than the right front door. In order to avoid stepping in the water in the gutter, plaintiff alighted from the left front door, walked on his tiptoes in the street next to the water in the gutter, in a southerly direction toward the driveway, looking for a place to cross over the water and go upon the sidewalk. While walking toward the driveway, he was conversing with his brother-in-law, LoPorto, and “exchanging words” with his wife and sister who had started to walk north toward the bowling alley. He could not see down the street; he “just didn’t look.” He could see down one side of the street but he “just wasn’t looking down there at all.” He saw a big open space and ears toward Florence Avenue (which was south of the bowling alley). He did not look to see whether there were any northbound cars in the vicinity of the driveway. He paid no attention as to whether there were any northbound cars in the vicinity of that driveway. He looked but did not see any cars. He looked while he was facing south but did not see any car coming toward him. At the entrance of the driveway, he stepped over the water onto the driveway in one step, and then onto the sidewalk in another step. When he stepped on the sidewalk, he was struck from the rear by defendants’ taxicab. He was struck below his knees while in

Plaintiff’s brother-in-law, LoPorto, testified in substance as follows: He saw plaintiff park his ear and walk back about 5 feet to the driveway. He did not remember whether plaintiff looked in the direction from which the taxicab was coming, but he (LoPorto) saw the cab make the left turn on the streetcar tracks in the middle of the street just as plaintiff was stepping over the water. He watched it come toward plaintiff, who was facing LoPorto (LoPorto was on the sidewalk, facing the street). When he first saw the taxicab it was in the middle of the street, and plaintiff was on the sidewalk. He first saw the taxicab when it was “running into the driveway” and plaintiff was “laid down on the sidewalk.” He first saw the taxicab when it was “back about 5 feet,” after he saw plaintiff. He first saw the taxicab when its lights came toward him. He first saw the taxicab when it was facing north and it “all at once” turned to the west. The only thing he remembered was when the taxicab struck plaintiff and then backed up. He had no conversation with the police officers at the scene of the accident, and he did not tell them that plaintiff had attempted to jump over the water. He called the officers’ attention to plaintiff’s clothes, which were all dry except the toe of his shoe. The taxicab driver told the officers he knocked plaintiff 50 feet, and he (the taxicab driver) told the witness he hit plaintiff in the street.

Plaintiff’s sister testified in substance as follows: She and plaintiff’s wife had started to walk on the sidewalk toward the entrance to the bowling alley (which was in a northerly

Plaintiff’s wife testified in substance the same as his sister, except as follows: She saw plaintiff step over the water. She was facing north at the time of the accident. She recalled no conversation at the scene of the accident as to whether plaintiff stepped or jumped over the water.

A police officer who, according to testimony of the taxicab driver, arrived at the scene about 10 minutes after the accident, testified in substance as follows: Plaintiff was sitting in the center of the driveway, which was south of the bowling alley, when they arrived. There was another driveway north of the driveway where plaintiff was sitting, and plaintiff’s automobile was parked in the first space north of this north driveway (not north of the south driveway as plaintiff testified), a distance of approximately 29 feet from where plaintiff was when the witness arrived. He discussed the accident with plaintiff and LoPorto. Plaintiff told him he jumped over the puddle of water at the time of the accident. He found plaintiff’s clothes were dry when he examined them at the hospital.

Another police officer, who arrived at the scene with the preceding witness, testified in substance as follows: He had taken notes at the scene of the accident and had refreshed his memory therefrom. Plaintiff was sitting in the driveway when the witness arrived. LoPorto told him plaintiff was attempting to jump across the stream of water in the gutter and was hit by the taxicab. He measured the distance from plaintiff’s parked automobile to where plaintiff was sitting in the south driveway and the distance was 28 feet. He talked with the driver at the scene of the accident but did not hear him, or anyone else, say he struck plaintiff and knocked him 50 feet. He measured the red zone south of the south driveway and it was 9 feet in length.

The taxicab driver testified in substance as follows: He was traveling north on Pacific Boulevard, stopped for southbound traffic and then proceeded to complete a left turn into the driveway. He was traveling about 6 or 8 miles an hour when

Plaintiff asserts that the driver of an automobile who intends to make a left turn between intersections and enter a private driveway must yield the right of way to a pedestrian who is on the private driveway. In support of that contention he cites sections 551 and 553 of the Vehicle Code. Section 551 provides that a driver who intends to make a left turn within an intersection is required to yield the right of way to a vehicle within the intersection approaching from the opposite direction. Section 553 provides that a driver who intends to enter a highway from a private driveway is required to yield the right of way to vehicles approaching on the highway. His argument is that since a driver who intends to make a left turn within an intersection, or enter a highway from a private driveway, is required to yield the right of way under the circumstances referred to in said sections of the Vehicle Code, therefore, “logically,” a driver who intends to make a left turn between intersections and enter a private driveway is required to yield the right of way to a pedestrian who is on the driveway. It is not necessary, in this case, to determine the legal sufficiency of that assertion. That assertion, as it relates to this ease, assumes it to be a fact that plaintiff was on the driveway when he was struck. The facts were determined by a jury and the verdict was for the defendants. It was not necessarily an implied finding of the jury that plaintiff was on the driveway or sidewalk when he was struck. There was testimony by the taxicab driver that the taxicab stopped at the curb, had not started up the elevation

Plaintiff asserts further that “defendant had the duty, before he drove into the private driveway which intersected the sidewalk, to make the turn only when he had ascertained that the driveway was clear, and that no pedestrians were using said driveway and sidewalk.” This contention is that the taxicab driver was required to know before making the turn that his contemplated movement of the taxicab could be made in safety. An automobile driver is not required to know that such a movement of an automobile can be made in safety. The requirement is that the driver take the precautions which a reasonably prudent person would take under the circumstances reasonably appearing to him at the time. (Spear v. Leuenberger, (1941) 44 Cal.App.2d 236 , 247 [ 112 P.2d 43 ].) This requirement is recognized by plaintiff in his brief wherein he states: “The defendant should not have turned his vehicle into the driveway unless such movement could be made with reasonable safety. ...” (Italics added.) This further assertion of plaintiff, relative to the duty of the driver before going upon the driveway, is also based upon the erroneous assumption that it was necessarily an implied finding of the jury that plaintiff was on the driveway.

The plaintiff and defendants were required to exercise ordinary care. Whether the defendants were guilty of negli

There were substantial conflicts between the evidence offered by plaintiff and that offered by defendants Also there were conflicting statements in the testimony of the witnesses called in behalf of plaintiff, which related to: whether plaintiff looked or did not look for moving automobiles; plaintiff’s manner of crossing the water; where plaintiff was when he was struck; and where the taxicab was when plaintiff’s brother-in-law first saw it. It was within the province of the jury to determine what weight should be given to the evidence.

Upon an appeal in which it is contended that the evidence was insufficient to support the verdict, the reviewing court is not empowered to disturb the verdict if there was substantial evidence to support the verdict. (Crawford v. Southern Pacific Co., (1935) 3 Cal.2d 427 , 429 [ 45 P.2d 183 ].)

Plaintiff contends that it should be concluded as a matter of law, against the verdict of the jury, that defendants were guilty of negligence and the plaintiff was not guilty of contributory negligence. To make that conclusion the evidence must be such that there is no substantial conflict as to the facts, and from the facts reasonable persons can draw only the inference that defendants were negligent and plaintiff was not contributively negligent. (Crawford v. Southern Pacific Co., supra, (1935) 3 Cal.2d 427 , 429.) The conflicts in the evidence in this action preclude the drawing of that inference and conclusion.

The judgment is affirmed.

Shinn, Acting P. J., and Bishop, J. pro tem., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 27, 1943. Carter, J., voted for a hearing.