The defendants petition for a rehearing on the ground that the question of their alleged negligence is not sufficiently disposed of in the opinion. The defendant Clopton, who was driving the automobile, admitted that he was exceeding the speed limit and that his brakes were defective and that for that reason he could not stop or avoid the collision. It is conceded that upon this statement there was sufficient evidence of his negligence to go to the jury. It is pointed out, however, that these admissions were not binding upon the respondent Bullock's Company, and this is true. We will, therefore, give further consideration to the claim of respondent Bullock's. In respondents' brief the facts are thus stated: "It appears affirmatively that the deceased saw the automobile in time to avoid the accident, and it also appears without contradiction that the driver of the automobile did not see the deceased until he was within ten feet of the radiator, when he used every effort to avoid the accident. The driver of the automobile had the headlights of the street-car shining in his face, and both the driver and the deceased testified that under the existing conditions visibility was low."
The appellants state additional facts in their reply brief bearing upon the question of the negligence of the defendants as follows:
"It is admitted that the defendant Clopton was the driver of the car that struck the deceased, Burgesser, and that at the time of the accident Clopton was acting within the scope of his employment for the defendant Bullock's. Clopton testified that he was driving a Ford Speedster; that it was heavy twilight and that he could not see an object very well; that he was driving about twenty miles an hour; that his brakes did not respond; that they were either *Page 680 worn or strained; that on other stops that day his brakes appeared to be somewhat lax or loose; that when he first saw the deceased he was about a foot or a step south of the street-car; that the headlight on the street-car did not affect him much; that he observed a number of persons getting off the street-car just about the time he struck the deceased; that they all flashed up like a pistol-shot; that when he hit the deceased it somersaulted him. . . .
"The automobile, Clopton testified, was traveling twenty miles an hour. According to the testimony of Clopton, the deceased traveled more than halfway across Jefferson Street while he [Clopton] traveled ten feet in his automobile, the automobile traveling at a speed of twenty miles an hour. . . ."
The respondents are in error in stating that there was no direct statement as to the speed of the automobile. The driver Clopton was asked: "How fast were you traveling at the time of this accident when you saw Mr. Burgesser? A. I think about twenty miles an hour and possibly less." There was other evidence from which the jury might have inferred the speed of the automobile, which we need not state in detail. There was testimony that the automobile traveled fifty or sixty feet after hitting the deceased and that at the speed of twenty miles an hour with the brakes in good condition the automobile could have been stopped in from twenty to twenty-five feet. There was also other evidence that the brakes were not working well. The defendants' automobile crossed an intersecting street after it was first observed by the deceased. In view of the necessity of a new trial we refrain from a careful analysis of the testimony for the reason that the question of negligence and contributory negligence is essentially one for the jury.
In view of the fact that respondents so earnestly insist that there is no substantial evidence of negligence on their part it should perhaps be said that in many jurisdictions it is held negligence as a matter of law for a person to operate an automobile in the night-time at such a speed that he cannot stop the machine and avoid an obstruction or other traveler within the distance that the highway is illuminated by his lights. These cases are collated in the note to section 307 of Huddy on Automobiles, fifth edition, wherein the rule is stated as follows: *Page 681
"Reasonable care requires in many cases that the driver of a motor vehicle drive at a slower speed at night than during the day. It may be true that in a busy street in a large city, a greater speed would be justified at night, for then the other traffic would be lighter, but ordinarily a greater speed is allowed in the daytime. One restriction on his speed is that he shall keep the machine under such control and operate it at such speed that he can stop the machine and avoid an obstruction or other traveler within the distance that the highway is illuminated by his lights. As was said in one case, 'It was negligence for the driver of the automobile to propel it in a dark place in which he had to rely on the lights of his machine at a rate faster than enabled him to stop or avoid any obstruction within the radius of his light, or within the distance to which his lights would disclose the existence of obstructions. . . . If the lights on the automobile would disclose obstructions only ten yards away it was the duty of the driver to so regulate the speed of his machine that he could at all times avoid obstructions within that distance. If the lights on the machine would disclose objects farther away than ten yards, and the driver failed to see the object in time, then he would be conclusively presumed to be guilty of negligence, because it was his duty to see what could have been seen.' This proposition applies when the driver is making a turn in the road; and is applicable when the bright light from another machine is shining in the face of the driver. Moreover, the rule applies where the regular lights are not working and the driver is using a lantern hung in front of his radiator. The same principle is involved when, on account of a blinding snowstorm, the driver can see but a short distance ahead of his machine."
While this court has never adopted that rule, we are certainly not prepared to go to the other extreme of holding that it is no evidence of negligence whatever for a driver of an automobile to travel at a speed of twenty miles an hour with his lights so dim that he is unable to see a pedestrian more than ten feet in advance of his headlights when he cannot stop within twenty or twenty-five feet and when the evidence shows that he does not in fact stop for fifty or sixty feet. We repeat the question of the negligence of the defendants was one for the jury to determine under the evidence. *Page 682
In defendants' petition for a rehearing it is urged that it is our duty to at least mention and repudiate the doctrine announced by the first district court of appeal inMayer v. Anderson, 36 Cal.App. 741 [173 P. 174], if that is the effect of our decision, and it is also urged that the decision of that court in Spring v. Tawa, 49 Cal.App. 100 [192 P. 1051], is directly in point and was entitled to consideration.
While we do not recognize any obligation on the part of this court to interpret and distinguish decisions of the district court of appeal because it is contended that the rule there laid down is inconsistent with the one adopted by this court, either in its previous opinions or in the opinion pronounced, in view of the respondents' insistence, it is proper to say that both cases are readily distinguishable from the case at bar. In Spring v. Tawa, 49 Cal.App. 100 [192 P. 1051], the pedestrian was standing in a position of safety and being frightened by the approaching automobile ran toward it and into its side as it passed her. Moreover, the rule stated in that case as to the duty of the trial court in directing a verdict is incorrectly stated as follows: "The rule has been laid down, both in the supreme court and in this court, that the ruling of a trial court as to whether a given state of facts presented before it does or does not amount to negligence as a matter of law will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. (Mayne v. San Diego Elec.Ry. Co., 179 Cal. 173 [175 P. 690]; Diamond v. Weyerhaeuser,178 Cal. 540 [174 P. 38]; Charves v. San Francisco O. T. Ry.,44 Cal.App. 221 [186 P. 154])." The authorities cited do not sustain the rule laid down. The case of Mayne v. San DiegoElec. Ry. Co., supra, cited by the district court in support of its statement was one involving the alleged contributory negligence of a child of fourteen years of age and it was in this connection that it was stated "that as a rule courts upon appeal have not interfered with the discretion of trial courts in referring or in refusing to refer to juries the question as to whether the contributory negligence of children of the age of fourteen years, or under was such as to prevent their recovery for injuries sustained by them." (179 Cal. 177 [175 P. 692].) The correct *Page 683 rule is stated in Diamond v. Weyerhaeuser, 178 Cal. 540 [174 P. 38]:
[3] "If there was any substantial evidence tending to show that the collision was caused by negligence on the part of defendant's driver, the action of the court in directing a verdict was, of course, erroneous. The existence or nonexistence of negligence is ordinarily a question of fact to be determined by a jury. On the other hand, the court may withdraw the case from the jury and direct a verdict where the evidence is undisputed, 'or is of such conclusive character, that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.' (Davis v. California St. C. R. R. Co.,105 Cal. 131 [38 P. 647]; Estate of Baldwin, 162 Cal. 471 [123 P. 267].)"
With reference to the case of Mayer v. Anderson, supra, respondents earnestly insist that the case is "not distinguishable and is in direct conflict with the principle of law announced in the case at bar." To distinguish that case from this it is only necessary to note that the plaintiff in that case walked across Kearny Street on the north side of Market Street in San Francisco at 5 o'clock in the afternoon when the traffic was very heavy, "looking straight ahead, without glancing to either side, and was absolutely oblivious to the proximity of the automobile right up to the moment of the impact, at which time he had traversed about three-quarters of the distance across the street." The court properly held that the pedestrian was bound to do more than this, in the exercise of due care, to avoid colliding with an automobile traveling no faster than the pedestrian was walking.
Rehearing denied.
Kerrigan, J., Lennon, J., Seawell, J., Lawlor, J., and Myers, J., concurred. *Page 684