REID WHITELAW, Respondent, v. GIDEON D. McGilliard, Appellant, 179 Cal. 349

MELVIN, J. Plaintiff was awarded by a jury one thousand dollars damages for personal injuries, and judgment was entered accordingly. From said judgment and from the order denying his motion for a new trial defendant appeals. The accident occurred at the intersection of Broadway and Temple Street, in the city of Los Angeles.

Defendant’s son, a young man seventeen years of age, was driving defendant’s automobile at an admittedly unlawful rate of speed, that is, from twenty to twenty-five miles an hour, northward on the east side of Broadway, and he did not modify the speed of the motor vehicle as he approached the intersection of Broadway and Temple Street. Plaintiff was crossing Broadway at Temple Street, coming from the west on a motorcycle. The two vehicles came into collision east of the central point of the intersection of the two streets.

There was a conflict of testimony regarding the exact point and the precise manner of the contact. Some of the witnesses testified that the motorcycle ran into the automobile, others that the left front wheel of the motor car struck the motorcycle, dismounting the rider, and that the rear wheel of the larger vehicle passed over his legs. Of course, it is not the province of this court to review the conclusion reached by the jury upon such testimony, if there be any rational basis for the verdict.

According to plaintiff’s testimony, as he was proceeding at a very low rate of speed across Broadway a truck was going south on that street. He passed behind the truck a little south of the center line of Temple Street. He was then moving, he said, at the rate of about four miles .an hour. "When he emerged from behind the truck he saw the automobile moving north on the east side of Broadway at a rate of twenty to twenty-five miles an hour. (Anything over ten miles an hour at such an intersection was contrary to ordinance.) He further testified: “When I saw the automobile first I was only about four feet from it.

The auto* mobile came in contact with my motorcycle, the left front wheel of the automobile striking the motorcycle which I was riding. I did not hear any signal given by the automobile, no gong or blowing of horn. The collision occurred a little north of the center of Temple Street and on the west side of Broadway.” The witness also testified that as soon as he saw the approaching automobile he did all in his power to stop the motorcycle. The testimony of the young man who was driving the motor car was not entirely consistent.

Upon his cross-examination he said: “I saw the motorcycle when it was about four feet from me. I did not slacken the speed of the car as I went up Broadway and I did not blow any horn.” But upon his direct examination he had testified, among other things: “ When I had reached a point at about ten feet to the south of the southeast corner of Temple Street and Broadway I first noticed the motorcycle. I knew I had the right of way and so I proceeded right along. The motorcycle was, at the time I first saw it, about the same distance beyond the intersection of Temple and Broadway on the west.

The motorcycle looked to me as though it would pass behind me, as I had about cleared the railroad tracks in the center of Temple Street going north, and was several feet north of the center of Temple Street on the west side of Broadway when the motorcycle, which was coming down the center of Temple Street, took a sharp turn to the north and struck the automobile on the running-board just back of the front wheel.” The local ordinance, which was introduced in evidence, provided that the drivers of vehicles traveling north and south had the right of way over those proceeding east and west, and it is argued that since the plaintiff was violating that ordinance by failing to yield the right of way, and was disobeying the rule of the road by seeking to cross Broadway north of the middle line of Temple Street extended, his own negligence was the proximate cause of his injury, and that, therefore, the judgment should not be allowed to stand.

There is no force in this argument. The jury may have believed the first statement of defendant’s son, which placed him about forty "feet from the. median line of Temple Street extended and ten feet from the south line when he saw the plaintiff already passing across the street. The plaintiff could not be expected to yield the right of way to one so far away, whose duty it was to slow down in crossing the intersection. When the defendant’s son drove the vehicle upon that space he was going at an unlawful rate of speed, which he maintained.

The rule regarding right of way does not •impose upon the person crossing the street the duty of assuming that the other will continue across an intersecting street without slowing down, as required by law. It is clear that if the defendant’s son had been going at a lawful rate of speed, or had slowed down as required by law, there would have been ample opportunity for the safe passage of the motorcycle.

If the driver of the motorcycle was violating the rule of the road by being north of the median line of Temple Street extended across the intersection, it cannot be justly said as a matter of law that such violation, if any, was the proximate cause of the injury. The questions of the defendant’s negligence and the plaintiff’s alleged contributory negligence were duly submitted to the jury upon instructions of which we find no criticism in the brief of appellant. It was a ease in which the jury might determine from the evidence whether there had been negligence or not and who was guilty thereof.

Judgment and order affirmed. Wilbur, J., and Lorigan, J., concurred. Hearing in Bank denied. Sloss, J., Melvin, J., Wilbur, J., Richards, J., pro tem., and Angellotti, C. J., concurred.