
    [Civ. No. 2055.
    First Appellate District.
    June 20, 1917.]
    ANITA KERNER, Appellant, v. L. M. SPIEGL, Respondent.
    Negligence—Collision op Pedestrian With Automobile—Evidence— Question op Fact.—In an action for damages for personal injuries sustained by a pedestrian from a collision with an automobile at the crossing of a city street, the question of negligence of the parties is one of fact and not of law, where it is shown that the defendant was required to suddenly change the course of his machine to the opposite side of the street in order to avoid a collision with a passing wagon, and at the same moment the plaintiff stepped off the curb into the street carrying a raised umbrella and attempted to cross.
    APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial. A. E. Graupner, Judge.
    The facts are stated in the opinion of the court.
    Hamilton A. Bauer, for Appellant.
    Walter H. Linforth, for Respondent.
   RICHARDS, J.

This is an appeal from an order denying plaintiff’s motion for a new trial. The action was one for damages alleged to have been sustained by the plaintiff through an accident arising from the negligent operation of the defendant’s automobile. The defendant in his answer denied that the accident occurred through any negligence on the part of himself or the operator of his automobile, and alleged that the plaintiff’s injury occurred through her own negligence. The action was tried by the court sitting without a jury, and the findings and judgment of the court were in favor of the defendant upon both these issues. The plaintiff did not appeal from the judgment, but moved for a new trial upon the ground of the insufficiency of the evidence to justify the decision of the court, and also upon the ground of newly discovered evidence, and she now appeals from the order of the court denying her said motion for a new trial.

The facts of the case which form the basis of the findings and judgment of the court were briefly these: On the evening of December 10, 1913, the defendant in his automobile driven by his son, a driver of several years’ experience, was proceeding westerly along the northerly side of Post Street, in the city of San Francisco, at a rate of speed testified to as not exceeding ten miles an hour. The night was dark. It was raining and the roadway was slippery. As the automobile was in the act of crossing Post Street a wagon, driven by some person unknown, suddenly undertook to turn up Post Street in such a way as to require the operator of the automobile to immediately change the course of the machine and cross over near to the southerly side of Post Street in order to avoid a collision. At this moment the plaintiff and a companion going northward on the westerly side of Polk Street stepped off the curb into Post Street carrying a raised umbrella and attempting to cross said street. When discovered by the driver of the automobile, and when they in turn became aware of its proximity, the plaintiff and her companion were about three feet from the curb of Post Street and three or four feet in front of the machine. The driver made every effort to stop the machine in order to avoid "a collision, but could not do so fully, and the machine struck the plaintiff and her companion, knocking them down, bruising them both somewhat, and injuring their clothing through contact with the car and muddy street. The machine came to a standstill immediately after the impact, and no part of the automobile went over either of the ladies.

The foregoing facts were presented to the trial court, and its findings based thereon were to the effect that the defendant was not guilty of any negligence in the operation of his said automobile under the circumstances immediately preceding and attending the occurrence of the accident, but that the plaintiff was negligent in stepping into the roadway on Post Street in front of said automobile without looking to see whether any automobiles were approaching the place where plaintiff was about to go on said roadway, and that her injuries were caused thereby.

The plaintiff insists that the findings and judgment of the court should have been in her favor upon the facts. We are unable, however, to say that the question of negligence arising out of the foregoing facts was a question of law which should have been resolved in plaintiff’s favor. It was rather a question of fact which the court, sitting as a jury, had a right to resolve in favor of either party to the action; and its discretion in so doing will no more be subject to review by this court than would the discretion of a jury have been had the case been submitted to a jury.

The plaintiff further contends that her motion fór a new trial should have been granted upon the ground of newly discovered evidence, but upon this point it is sufficient to say that the affidavit upon which this phase .of the motion was predicated was wholly insufficient in its showing of reasonable diligence to procure the alleged newly discovered evidence prior to the trial of the cause.

For the foregoing reasons the order denying plaintiff’s motion for a new trial is affirmed.

Beasly, J., pro tem., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 16, 1917.  