Averdieck v. Barris , 63 Cal. App. 495 ( 1923 )

This defendant appeals from a judgment following a verdict in favor of the plaintiff in the sum of two thousand five hundred dollars for personal injuries caused by the plaintiff being struck down by the defendant through the careless operation of the latter's automobile. No question arises from the pleadings or the conduct of the trial before the jury. The only points raised on the appeal are that the evidence is insufficient to show negligence on defendant's part, that it affirmatively shows contributory negligence on plaintiff's part, and that the verdict is excessive.

The accident occurred at the corner of Lincoln Way and Thirty-seventh Avenue, in the city and county of San Francisco. Lincoln Way runs east and west and Thirty-seventh Avenue runs north and south, intersecting Lincoln Way on the south, but does not cross the street to the north. Two street-car lines run along Lincoln Way, located approximately at the center of the street. Plaintiff was a passenger on an out-bound street-car going westerly. The car stopped in what might be termed the middle of the intersection with the rear of the car at the extension of the easterly line of Thirty-seventh Avenue. Plaintiff alighted from the rear platform of the car following another passenger and walked southerly toward the curb at the southeast corner of Thirty-seventh Avenue and Lincoln Way on his way to his home. As he alighted from the car he looked east and saw the lights of defendant's automobile approaching on the north side of Lincoln Way about a hundred or two hundred feet distant. After he had crossed the inbound or southerly street-car track and was close to the sidewalk and still east of the easterly line of Thirty-seventh Avenue he was struck by defendant's automobile which had cut the corner, turning off the northerly side of Lincoln Way and running southwesterly to the southeasterly corner of the two streets.

[1] The mere statement of the facts is in itself a sufficient answer to the claim that the evidence is insufficient to show negligence on defendant's part. In thus cutting the intersection of the two streets he was driving contrary to the express provisions of the Motor Vehicle Act (Stats. 1915, p. 397, as amended by Stats. 1917, p. 382), and it was this negligence that was the proximate cause of the injury.

[2] On the issue of contributory negligence the evidence is that the plaintiff was walking across the street through what is often termed the "safety zone" so far as vehicles approaching from the east were concerned. He looked for approaching vehicles before he started across the street and saw that he had a clear path. He was not required to assume that the defendant would depart from his legal and ordinary course of travel. "A person crossing a street in front of an approaching vehicle cannot close his eyes to threatening danger, relying upon the presumption that the other party will use reasonable care and prudence and obey the traffic laws, but if there is nothing in the situation to warn him of impending danger, he is not guilty of negligence in relying upon such assumption." (Simonsen v. L. J. Christopher Co., 186 Cal. 786, 787 [200 P. 615].) "The general rule is that every person has a right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise it is not negligence to assume that he is not exposed to danger which comes to him only from violation of law or duty by such other person." (Harris v. Johnson, 174 Cal. 55, 58 [Ann. Cas. 1918E, 560, L. R. A. 1917C, 477,161 P. 1155, 1156].)

On the question of the amount of the verdict defendant seeks to convince this court that the character of the injuries sustained does not justify a verdict in the amount returned by the jury. This, of course, is the precise question which the jury was called on to determine. [3] It is only when the award is so grossly disproportionate as to shock the sense of justice and indicate that the verdict was the result of passion or prejudice that the court can set it aside as excessive. (Harrison v. Sutter Street Ry. Co., 116 Cal. 156, 164 [47 P. 1019]; Martin v. Shea, 182 Cal. 130, 139 [187 P. 23].)

Judgment affirmed.

Sturtevant, J., and Langdon, P. J., concurred.