Ducat v. Goldner

From a judgment on a verdict in favor of plaintiff in. a personal injury action defendant appeals, asserting as grounds for reversal errors in the instructions to the jury, errors in the admission of evidence, and contributory negligence of plaintiff.

Respondent was walking in a southerly direction on the west side of La Brea Avenue, in the city of Los Angeles, at about 2 o’clock in the morning. He started across Eighth Street about the middle of the crosswalk which was marked with white lines, and after taking four or five steps from the north curb line of Eighth Street was struck by appellant’s automobile and knocked in a southwesterly direction. At that time there were no street lights and the business establishments in the neighborhood were dark. Rain was falling. Respondent was wearing a long, dark green overcoat and a black rain hat which had a large visor on the back. Before stepping from the curb into Eighth Street respondent looked east and west along Eighth Street and over his left shoulder to the north along La Brea Avenue for the approach of automobiles but saw none. Appellant drove in a southerly direction along La Brea Avenue and made a right turn westerly into Eighth Street. He was driving slowly and after striking respondent his car came to a stop within the lines of the crosswalk, the front end of the car being substantially in line with the west line of the crosswalk. Appellant testified that he did not see respondent until the collision occurred; that his windshield wipers were working and that the lights on his car were burning. Respondent testified that after the accident, when he was being taken home by appellant, the latter worked the wiper on the left side in front of the driver’s seat with his hand and said “It’s bad out tonight. It’s hard to see.”

1. Alleged errors in the instructions to the jury.

Appellant had no right to assume that the road was clear but it was his duty to be vigilant and to anticipate the presence of others in the highway. The fact that he did not know that respondent was in the street is no excuse for his failure to give warning (Rush v. Lagomarsino, 196 Cal. 308 , 317 [ 237 P. 1066 ]; Meyers v. Bradford, 54 Cal.App. 157 , 159 [ 201 P. 471 ]) or to keep a proper lookout for pedestrians. (Re augh v. Cudahy Packing Co., 189 Cal. 335 , 340 [ 208 P. 125 ] ; Zarzana v. Neve Drug Co., 180 Cal. 32 , 37 [ 179 P. 203 , 15 A.L.R. 401 ]; Schomer v. R. L. Craig Co., 137 Cal.App. 620 , 624 [ 31 P.2d 396 ].)

The evidence of both parties, who were the only witnesses to the accident, was that respondent was in the cross

Although, as we have stated, there is no claim either that appellant gave warning or that respondent had knowledge of the approach of the car, any objection that appellant has advanced is excluded from consideration by the fact that both elements were submitted to the jury by the instruction. (See Maggart v. Bell, 116 Cal.App. 306 , 310 [ 2 P.2d 516 ].) The jury was not instructed, as in White v. Davis, 103 Cal.App. 531 , 544 [ 284 P. 1086 ], that the law required that the driver of the car make certain that the pedestrian was aware of his approach.

Section 671(b) of the Vehicle Code requires the driver of a motor vehicle to give an audible warning with his horn “when reasonably necessary to insure safe operation.” The darkness of the streets and the condition of the weather required that a reasonably prudent person should sound his horn to insure safe operation of his automobile when turning a corner at a place where a pedestrian might reasonably be expected. The inability of appellant to see respondent did not affect the former’s liability.

(b) Another instruction complained of by appellant reads as follows: “You are hereby instructed that a pedestrian crossing an intersection in a crosswalk is not required to look behind him for traffic which might approach him by turning from the intersecting street, or to continue looking in that direction as he crosses.” Appellant requested the court to withdraw the instruction and to instruct the jury to disregard it, and in lieu thereof to give the following: ‘ ‘ The question as to whether plaintiff should have looked behind him for traffic which might approach him by turning from the intersecting street is a question of fact which must be determined by you from all of the evidence and circumstances in this particular case. It is your duty to determine what an ordinarily prudent person, situated as plaintiff was, would have done under the conditions and circumstances existing at and prior to the time of the happening of the accident in question. If you find from a consideration of the entire evidence in this case that the plaintiff did not exercise for his own safety that degree of care which an ordinarily prudent person would have exercised under the circumstances, then you should find that plaintiff was negligent. ’ ’

2. Alleged error in admitting hospital hills in evidence. Respondent offered evidence of hospital charges against him for which he had become liable for the treatment of the injuries suffered by him as a result of the accident. Pursuant to subpoena a collector for the Bureau of Research and Collections of the County of Los Angeles produced the original records of charges made against respondent for hospital and medical treatment in the Los Angeles County Hospital. The documents consisted of the original ledger sheet and a memorandum bill showing the charges. Their authenticity and the fact that they had been prepared in the ordinary course of business were established by the witness. They indicated the liability incurred by respondent to the county of Los Angeles. Appellant contends that no foundation was laid in that the necessity for the services rendered and the reasonableness of the amounts charged were not shown. It seems clear from the examination of the witness and from the colloquy of the attorneys during his examination that the documents were not offered for the purpose of proving either the necessity for the services or the reasonableness of the charges. The documents were admissible for the purpose of establishing the liability incurred by respondent for the treatment of his injuries. (Egan v. Bishop, 8 Cal.App.2d 119 , 122 [ 47 P.2d 500 ].) The determination by the trial court that the foundation laid was sufficient is binding upon the appellate court. (Idem, p. 123; Code Civ. Proc., § 1953f.) A book of account is prima facie but not conclusive evidence of the transactions recorded

There is no merit in appellant’s contention that respondent’s special damages were not properly pleaded. It is alleged in the complaint that by reason and as a result of the negligence of defendant plaintiff was caused to employ the services of physicians and surgeons and to incur necessary hospital and medical bills, the exact amount of which was unknown at the time the complaint was filed, and that plaintiff would ask leave to amend his pleading so as to set forth the exact amount of the bills therefor. The fact that respondent did not ask leave to amend his complaint by inserting the precise amount of his obligations is of no consequence. Appellant was advised by the pleading that respondent would claim such charges as a part of his damages. He could have ascertained the amounts by demanding a statement of the same or by taking respondent’s deposition. Appellant makes no contention that he was surprised by the proof, or that he was without opportunity to defend against the claim, or that the amount was excessive. Having suffered no harm he is without ground for complaint. (Const., art. VI, § 41/2.)

3. The sufficiency of the evidence. Appellant contends that there is no evidence proving negligence on his part. He asserts that by reason of the atmospheric conditions' to which we have referred and of the fact that respondent was wearing a dark rain coat and hat, he was practically “blacked

4. Contributory negligence of respondent. Appellant’s contention that respondent is shown by the evidence to have been guilty of contributory negligence has already been considered in the discussion of the instructions and need not be further elaborated. The facts negate that defense. In addition to the eases previously cited see Schomer v. R. L. Craig Co., 137 Cal.App. 620 , 625 [ 31 P.2d 396 ]; Reaugh v. Cudahy Packing Co., 189 Cal. 335 , 341 [ 208 P. 125 ],

Judgment affirmed.

Moore, P. J., and MeComb, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied February 13, 1947. Schauer, J., voted for a hearing.