I dissent.
I agree with Mr. Chief Justice McDONOUGH that under the California decisions whether or not plaintiff is guilty of contributory negligence is a question to be determined by the jury.
Viewing the evidence favorable to plaintiff, a jury could have found that she was crossing Wilshire Boulevard in a pedestrian zone; that she had proceeded half way across the boulevard when she stopped to permit three cars to pass; these cars were coming from the west; that after the passing of the three cars, she looked to the west and saw the lights of other approaching vehicles; that she then walked across the next lane of traffic and as she reached a point approximately 25 feet from the curb, she again looked to the west; at that time she estimated the cars were from 150 to 180 feet west of her and that she had ample time to reach the curb in safety; and, that acting on this assumption, she started across the last two traffic lanes and was struck when she was a short distance from the curb.
In the recent case of Hickok v. Skinner, 113 Utah 1,190 P.2d 514, we had occasion to pass on a duty of a driver of a vehicle to make frequent observations and appraisements of the relative positions of two cars when time and circumstances permitted. Basing our decision on the distance to be traveled, the length of time the plaintiff had to reappraise the position of defendant's car, and plaintiff's failure to look in the direction from which he knew traffic was coming before he drove into a position of danger, we held him (plaintiff) to be guilty of negligence as a matter of law.
In this case, if we accept plaintiff's evidence, she looked when she reached the half-way point, permitted traffic reasonably close to pass, traveled across the next lane of *Page 260 traffic, looked again and estimated she had time to reach the curb in safety. True, she apparently made a bad estimate, but it appears to me that considering the point she had reached in crossing the street, the fact that she was entitled to the right of way over approaching traffic, and that the oncoming cars were still at a considerable distance away, the jury could reasonably conclude as they did that she was not negligent in not looking again.
As I interpret the California decisions and analyze the reasoning of this court in the Hickok v. Skinner case, supra, I come to the conclusion that under the law in both jurisdictions the trial judge was right when he refused to direct a verdict against plaintiff based on the principle that she was guilty of negligence as a matter of law.
I dissent from those portions of the court's opinion which hold the court improperly instructed the jury. As to the first instruction, I believe it is correct under the California decisions and statutes. The majority of the court base their opinion on the proposition that the posted speed for that district was 25 miles per hour and that there is no evidence that defendant exceeded that speed. I concede the evidence does not justify a finding that defendant exceeded the posted speed limit, but there are two reasons why this is not controlling as to her negligence. Under California law, driving within the posted speed limit may be negligence if the driving is such as to violate the basic speed law, which is the law given by the trial judge in his instructions. Secondly, the posted speed limit does not necessarily apply when traveling into and across traffic-controlled intersections. In this instance, we have Wilshire Boulevard which appears to make a "Y" intersection with two other streets. Plaintiff was in a crosswalk crossing the boulevard and the flasher signal was flashing in the direction from which defendant was coming, warning her that she was about to enter and cross an intersection that might be being used by both pedestrians and vehicular traffic. To hold that because defendant was not traveling faster than the posted *Page 261 speed she was not guilty of violating the basic California law, ignores the facts I have mentioned and is contrary to the statutes of the State of California.
The majority of the court hold the trial judge erred in giving instruction No. 11. I believe this instruction correctly states the law and is applicable to the facts of the case. While conceding plaintiff testified she saw the lights of the cars approaching, she also estimated they were 150 to 180 feet from her. The rule announced in the prevailing opinion is that if a pedestrian, at night, makes an inaccurate estimate as to how far away an approaching car might be, he, or she, is not entitled to be warned of the close proximity of the vehicle even though a reasonably prudent driver would have sounded a warning. I had always assumed that the giving of a warning by sounding a horn was not only for the purpose of notifying another party that the vehicle was approaching down the street, but was also for the purpose of calling their attention to the fact that the car was so close that a collision was imminent. I believe the jury in this case could have reasonably found that plaintiff's judgment as to distance was not good; that had defendant sounded her horn when a reasonably prudent person would have done so, plaintiff would have been apprised of the fact that the defendant's car was so close that plaintiff must take immediate steps to avoid a collision; and that defendant's failure to so warn plaintiff had a causal connection with the injuries suffered.
The last instruction referred to in the prevailing opinion is one requested by the appellant. The refusal of the trial court to give this instruction is held to be error. The trial judge indicated on the request that it had been given in substance and with this I agree. A reference to instruction No. 11, given by the trial court, shows that the jury was instructed, in effect, that defendant could not be charged with negligence in failing to sound a horn unless a reasonably prudent person would have taken such action under the facts and conditions found to be then existing. It is *Page 262 evident to me that if the jury found that defendant was operating her automobile with the same care and caution that an ordinarily prudent person would have exercised under the same circumstances, and that plaintiff suddenly and unexpectedly walked into the path of defendant's car, and defendant did not have time to sound a warning, that no reasonable jury could find her negligent because she failed to sound a horn. To me, the only difference between the two instructions is that the one requested singled out and particularized some of the evidence. Having covered the subject in one instruction, the fact that the court refused to emphasize certain parts of the evidence does not constitute error.