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SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

FOR THE COUNTY OF SAN FRANCISCO

 

[Mr. Lee's motion to deny a new trial]


 

 

INTRODUCTION

 

  The trial of this action took place before a jury of twelve persons from May 4 to May 13, 1998, in Department 318 of the Superior Court, the Honorable Alex Salamando, Judge, presiding. 
    Sixteen witnesses were sworn and testified. Numerous documents and things were marked and admitted into evidence. 
    Plaintiff did not move for a directed verdict, and Plaintiff proposed jury instructions and a form of special verdict which submitted the issue of any negligence by Defendants to the jury. 
    The jury was duly instructed by the Court, counsel argued, and the cause was submitted to the jury with directions to return a special verdict. The jury deliberated, and within one and one-half hour, returned with the following special verdict: 

"We, the jury in the above entitled action, find the following special verdict on the question submitted to us: Question No.1: Was the defendant negligent? 
Answer "yes" or "no". Answer: "No" 

    Plaintiff has not moved for a judgment notwithstanding the verdict, but now moves for a new trial on all issues pursuant to California Code of Civil Procedure Section 657 (6) on the ground that the evidence at trial was insufficient to justify the jury’s verdict that Defendant was not negligent. 
    Defendants respectfully submit that Plaintiff has failed to make the required showing that after weighing the evidence and considering the entire record, including reasonable inferences there from, the jury clearly should have reached a different verdict. Plaintiff has ignored, misstated, or mischaracterized the abundant, credible evidence presented at trial which demonstrated Defendant [Mr.X] was not negligent in the subject accident. Accordingly, Plaintiff’s motion for a new trial should be denied.                                      

 

11. DISCUSSION 

 

A. FACTUAL BACKGROUND

 

Plaintiff testified at trial that the weather conditions on the morning of the accident were "normal" for that time of the year – misty and dark. Plaintiff testified it had been raining the night before, and the street pavement throughout the intersection of Tewksbury Avenue and Castro Street was wet. 
    Shortly after the accident, Plaintiff told Officer Andre Hill that the intersection, including the area where she was hit, was "dim." Plaintiff testified there was no streetlight at the corner of Tewksbury Avenue and Castro Street from where she crossed Tewksbury Avenue. Plaintiff recalled the impression that it was dark at that corner. 
    Plaintiff noticed that a street light further east on Tewksbury Avenue (that was marked as light no. 3 on Plaintiff’s Trial Exhibit No. 11 in evidence (Scale diagram) was creating a glare on the street pavement in Front of the Erickson Building. 
    Officer Hill testified that at the time of the accident it had just rained; the ground was wet; and the street lights gave off a "yellow haze" that was "sort of dim." The street lights cast off a "dim light." Officer Hill concluded that based on his observation of the intersection, it was dim, and when wet, there was a glare that could impair someone’s vision. 
    When Officer Hill spoke to Plaintiff at the scene, Plaintiff agreed that the intersection was dim, the rain does reflect, and those conditions could impair someone’s vision. Plaintiff testified that she included [Mr. X] in that statement to Officer Hill. Officer Hill testified that [X] stated the intersection was kind of dim, and the wet pavement reflecting off the ground impaired his vision slightly. 
    Officer Hill testified he had observed the scene of the accident one or two weeks prior to his court testimony, but that the weather on the morning he returned to the scene was clear and dry, and there was no glare from the wet pavement. 
    [Mr. P] testified that the corner area was not well-lit, and there was a glare on the wet street pavement on Tewksbury Avenue in front of the Erickson Building. That glare impaired his ability to see pedestrians on the sidewalk and on the street pavement at the corner of Tewksbury Avenue and Castro Street in front of the Erickson Building. [Mr. P.] further testified without contradiction that the glare diminished the ability of the headlights to illuminate things at the accident scene. 
    [X] testified that the intersection was dark, the weather was overcast and wet, and there was a glare on the street pavement. [X] also testified to the presence of the utility pole that Plaintiff had walked behind just before crossing Tewksbury Avenue. 
    [X] testified that the right front of the car struck Plaintiff, that Plaintiff came onto the hood of the car only so far as her waist, and that Plaintiff did not hit the windshield of the car. [X] testified that after the accident he looked closely at the front of the car, and did not observe any damage to either its front grill or hood. A photograph was taken of the car, a pool car, on May 6, 1996 (more than 3 months after the accident). A small potion of the right front grill was broken at that time. [X] had not seen any such damage when he looked closely at the car on the morning of the accident. 
    Contrary to Plaintiff’s assertions, the evidence at trial was that [X] was in fact exercising due care at the time of the accident. Other than Plaintiff’s sheer speculation and conjecture, there is no evidence that [X] was traveling at an unsafe speed; there was no evidence that he was inattentive; there was no evidence that [X] was driving carelessly. 
    [Mr. X] testified that he slowed the car to a safe speed that would allow him to see pedestrians and stop quickly; that as he traveled through the intersection he did not stare fixedly straight ahead but continually scanned the area for pedestrians and potential hazards; that the car was under control at all times; and that he was being careful. 
    The evidence at trial was that there were several significant, verified factors which singly or in combination explained why [X] did not see Plaintiff until it was too late to avoid hitting her, even while he exercised due care. 
    All of the witnesses – [Officer Hill, Mr.P, Mr.X], and even Plaintiff – agreed that the weather was wet; the corner was dark; the lighting was poor; and there was a glare that impaired the vision of drivers like [X]. 
    Also, there were significant physical obstructions to [X's] view of Plaintiff. One physical obstruction was the utility pole at the corner of Tewksbury Avenue and Castro Street in front of the Erickson Building that obstructed [X's] view of the corner of Tewksbury Avenue and Castro Street. Plaintiff’s Trial Exhibit No. 11 in evidence (scale diagram). Plaintiff testified that she walked behind that utility pole shortly before crossing Tewksbury Avenue. Another physical obstruction was the street light pole that obstructed [X's] view of the corner of Tewksbury Avenue and Castro Street from the left turn lane on Castro Street. Defendants’ Trial Exhibit No. 299 in evidence. 
    Furthermore, the evidence at trial indicated that at the time of the accident Plaintiff was behaving in a manner which would have impaired [X's] ability to see Plaintiff her [sic] it was too late to avoid hitting her, even while [X] exercised due care. Plaintiff testified she was running late. Indeed, the evidence was that plaintiff had left herself a very small margin of error to get to her bus stop on time. 
    Plaintiff testified that after driving to the corner and parking her car, she started shutting it down at 5:55 a.m. Plaintiff’s bus was due to arrive at 6:00 a.m. Plaintiff testified it took 12 to 15 minutes to walk to her bus stop from her home. Thus, walking was out of the question. In fact, Plaintiff almost did not have enough time to drive to the bus stop. 
    Plaintiff testified that her bus did not linger at the bus stop. Plaintiff testified that the man she frequently saw at her bus stop was not there the morning of the accident. So, Plaintiff needed to be at the bus stop and waiting when the bus arrived. Otherwise, Plaintiff would miss that bus; Plaintiff would miss her connecting bus; and Plaintiff would be late for work. 
    Plaintiff also testified that she was excited on the morning of the accident because of her Voice Dialogue class. And, Plaintiff had seen her physician just the day before with numerous complaints. Furthermore, plaintiff was still seeing her chiropractor for the same chronic, debilitating physical ailments she had back in 1994. 
    Plaintiff’s [sic] testified she does not recall the last thing she looked at before she stepped off the curb; Plaintiff does not recall where she was looking before she stepped off the curb; and Plaintiff does not recall what she was looking at before she stepped off the curb. 
    Plaintiff testified that she does not ever recall looking at the left turn lane as she crossed Tewksbury Avenue. In fact, Plaintiff’s entire attention seemed to be focused on her right as she crossed Tewksbury Avenue. 
    Plaintiff testified she was perusing the bus stop area as she crossed Tewksbury Avenue. In response to the questioning of her counsel, Plaintiff specifically pointed to her Golden Gate Transit bus stop as the area she was "perusing." That point was even further to Plaintiff’s right than the local transit bus stop as Plaintiff crossed Tewksbury Avenue. In fact, that point was so far to Plaintiff’s right that it is not even depicted on Plaintiff’s Trial Exhibit No. 11 in evidence (Scale Diagram). Perusing that bus stop would have caused Plaintiff to look directly away from the left turn lane that Plaintiff testified she regarded as hazardous. 
    Furthermore, Plaintiff testified that she reached over to her right and looked down to adjust her backpack that was draped over her right shoulder just prior to the accident. Also, Plaintiff testified she looked down to her right and she saw two orange reflectors on the street pavement a distance from her right foot just prior to the accident. Those activities would have also caused Plaintiff to look away from the left turn lane that Plaintiff testified she regarded as hazardous. 
    Finally, there was compelling evidence at trial that Plaintiff was considerably outside the marked crosswalk at the point of impact. That evidence included Plaintiff’s untenable, evasive testimony concerning the purported point of impact within the marked crosswalk; the undisputed location and position of the car driven by [X] immediately after the accident; Plaintiff’s testimony concerning her location on the street pavement immediately after the accident; and Plaintiff’s testimony concerning her observation of two orange reflectors on Tewksbury Avenue as she crossed Tewksbury Avenue. 
    First, Defendants demonstrated at trial that the point of impact could not have been at the spot Plaintiff testified to and marked in her deposition. See, Defendants Trial Exhibits Nos. 210 and 210A in evidence (Photographs). 
    The undisputed location and position of the car driven by [X] immediately after the accident was marked by [Mr. X] on Plaintiff’s Trial Exhibit No. 11 in evidence (Scale diagram) based on his independent recollection, and Plaintiff’s Trial Exhibits Nos. 1 and 3 in evidence (Police photographs). In this connection, Defendants object to Exhibit D to Plaintiff’s motion for a new trial in that it was not a trial exhibit. Given the undisputed location and position of the car driven by [X] immediately after the accident, the point of impact could not have been at the spot plaintiff testified to and marked. If Plaintiff had been at that spot at the time [X] made his left turn, the car would have missed plaintiff. 
    Furthermore, if the point of impact was where Plaintiff testified to and marked, given the undisputed location and position of the car driven by [X] immediately after the accident, Plaintiff could not have ended up where she testified to on Plaintiff Exhibit No. 11 in evidence (Scale diagram). That outcome would have defied some elementary laws of physics. 
    Accordingly, Plaintiffs specific claim to a location within the marked crosswalk at the time she was hit was completely discredited by Defendants at trial. 
    Moreover, Plaintiff’s evasive testimony at trial on this important issue reflected and reflects very adversely on Plaintiff’s credibility, both generally and specifically. 
    For example, as soon as Defendants’ counsel began his line of questioning concerning the point of impact, Plaintiff commenced making unsolicited excuses for her deposition testimony.
    First, Plaintiff claimed that the enlarged photograph (Defendants’ Trial Exhibit No. 210A in evidence) somehow produced a different perspective that the photograph she had marked at her deposition. Defendants’ counsel immediately produced the actual photograph Plaintiff had marked at her deposition (Defendants’ Trial Exhibit No. 210 in evidence), and the perspective was the same. 
    Then, Plaintiff volunteered that she had started out her deposition testimony by testifying about "a" orange reflector. Defendants’ counsel showed that this  foundational question to Plaintiff at her deposition assumed "an" orange reflector, but Plaintiff’s response to that question referred to two orange reflectors. 
    Therefore, in response to Defendants’ counsel’s questions, Plaintiff admitted that before she marked Defendants’ Trial Exhibit No. 210 in evidence with a red Flair pen at her deposition, she had taken a recess to talk to her lawyer about it. So there was no confusion when the deposition was resumed and Plaintiff marked the photograph. Indeed, at her deposition Plaintiff reiterated her observation and belief in the two orange reflectors, and even attempted to reconcile her specific recollection of the two orange reflectors with the one orange reflector on the photograph by concluding that one of the orange reflectors had come off the street since the time of the accident. 
    However, Plaintiff’s Trial Exhibit Nos. 1 and 3 in evidence (Police photographs) proved that at the time of the accident there was only one orange reflector at the spot Plaintiff marked on Defendants’ Trial Exhibit No. 210 in evidence. Thus, Plaintiff’s assertion that an orange reflector had come off the street sometime after the accident was also completely disproved at trial. 
    What is more, at her deposition and at trial Plaintiff testified that when she looked down to the ground as she crossed Tewksbury Avenue, she observed two orange reflectors on the street pavement outside her right foot. In addition at trial Plaintiff testified that the two orange reflectors were not directly near her right foot, but were a distance away. 
    Plaintiff’s Trial Exhibit No. 2 in evidence (Police photograph) shows that the two orange reflectors nearest to the marked crosswalk were just ahead of the left front tire of the car driven by [X] where it ended up immediately after the accident. In other words, the two orange reflectors nearest to the marked crosswalk were just under a car length from the marked crosswalk. 
    This evidence, along with the undisputed evidence of the location and position of the car driven by [X] immediately after the accident, and the evidence of Plaintiff’s location immediately after the accident, is compelling evidence that at the time Plaintiff was hit by the car driven by [X], Plaintiff was considerably outside the marked crosswalk.
    Consequently, the evidence at trial was that Plaintiff was not exercising due care for her safety while crossing Tewksbury Avenue at the time of the accident. 
    Plaintiff testified that she was very familiar with the intersection, and the left turn lane that the car [X] was driving turned from. Plaintiff testified she had seen cars turn left from that lane "thousands" of times. While driving, Plaintiff stopped for cars making that left turn "everyday". Plaintiff considered the left turn lane hazardous because there is no stop sign and cars turn so quickly from there. 
    As set forth in Defendants’ Trial Exhibit No. 209 in evidence, Plaintiff testified at her deposition on the proper precautions to safely cross Tewksbury Avenue as follows: 


Q. Actually, I can ask it again. Because of the conditions that you’ve described the morning of January 24th 1996, did you exercise any special or extra precautions? 
A. Right. Normally that intersection is fairly dark. Because we have frequent fog, it’s usually wet and the fact that I had been going through that intersection for quite a while, I used the same precautions every time I go cross that street. 
Q. And what are those precautions? 
A. Precautions. I stand there and I look and make sure there’s no traffic coming from any of the directions, and if there is, I wait to see where they’re going, what’s going to happen, whatever. 


Moreover at trial, Plaintiff testified that if a pedestrian observed a car in the left turn lane area, the pedestrian should always wait for the car to complete its turn, and not attempt to cross Tewksbury Avenue. 
    So, according to Plaintiff, to safely cross Tewksbury Avenue at the time of the accident, she was required to: Stop; Look; and Absolutely Wait for any Cars in the left turn lane to pass. 
    Plaintiff testified at trial that she did not see the car driven by [X] until after she had been struck, she had been thrown to the street pavement, and she had raised herself up. 
    Plaintiff testified at trial that she had no explanation for why she did not see the car any earlier. Yet, it is undisputed that the headlights of the car [X] was driving had its headlights on, and that the car was heading toward Plaintiff. Also, it was undisputed that the headlights of cars were clearly visible at the time of the accident. Indeed, Plaintiff’s attorney, Kenneth Larson, declared in his opening statement: "Headlights on in the dark must have been clearly visible." 
    Plaintiff witness, [Mr.R.S.], unwittingly but accurately stated the only plausible explanation for Plaintiff’s failure to see the car driven by [Mr. X.] before, during, and right after it struck Plaintiff by his testimony at trial that: "If you look, you see headlights; but if you don’t look, you don’t see the headlights." In other words, the only explanation for Plaintiff’s failure to see the car driven by [X] any earlier is that at the time of the accident Plaintiff did not observe her rules of safety to: Stop; Look; and Absolutely Wait for any Cars in the left turn lane to pass. 
    In addition, the evidence at trial was that just prior to the accident, Plaintiff observed a white car other than the car driven by [X] exiting the freeway. The fact that Plaintiff saw at least one car in the intersection – when she looked - is certainly significant. Furthermore, the evidence at trial was that Plaintiff was not certain whether this other white car had its headlights on. In other words, Plaintiff may have been able to observe white cars in the intersection even if they did not have their headlights on. 
    Prior to the trial, Defendants had sought leave to augment their expert witness list with an accident reconstruction expert, Plaintiff objected to Defendants’ motion for leave to augment, insisting that an accident reconstruction expert was not required in this case, Defendants’ motion for leave was denied. 
    Following the Court’s rulings on the parties motions in limine, and the parties stipulation that no expert testimony would be presented to reconstruct the accident, Plaintiff offered no evidence at trial concerning such factors as the rate of speed of the Plaintiff was traveling through the intersection, the rate of speed of the car driven by [X] at various points as it proceeded through the intersection, the time it took [Mr. X] to react to Plaintiffs presence, the distance it took [X] to the car, and the respective locations of Plaintiff and the car driven by [X] as both proceeded through the intersection.


B. LEGAL ARGUMENT


    California Code of Civil Procedure Section 657 states in pertinent part with respect to motions for a new trial: 
    "Section 657. Grounds for new trial; Requisites of order granting new trial for insufficiency of evidence. The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: 6. Insufficiency of evidence to justify the verdict or other decision,… A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision." 
    See Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 463. 
    It is well established that in ruling on a motion for a new trial, the trial judge does not disregard the verdict, or decide what result it would have reached if the case had been tried without a jury. Instead, the trial judge "should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." People v. Robarge (1953) 41 Cal.2d 628, 633, 262 P.2d 14; Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215.
    In the context of a motion for a new trial insufficiency of the evidence means an absence of evidence, or that the evidence received, in the individual judgment of the trial judge, is lacking in probative force to establish the proposition of fact to which it is addressed. People v. Capps (1984) 159 Cal.App. 3d 546, 552, fn. 5, 205 Cal.Rptr.989; Dominquez v. Pantalone (1998) 212 Cal.App.3d 201, 215. 
    Defendants respectfully submit that the evidence at trial summarized above undoubtedly constitutes more than sufficient credible evidence to support the jury’s verdict that [X] was not negligent. Certainly, considering that evidence, including reasonable inferences therefrom, it can not be said that the jury clearly should have reached a different verdict.
    Defendants recognize there is a line of cases decided under the law of contributory negligence in which the appellate courts reversed verdicts in favor of a defendant driver against a plaintiff pedestrian on the grounds that the evidence established the negligence of the defendant as a matter of law, and there was insufficient evidence of the Plaintiff’s contributory negligence. See, Gray v. Brinkerhoff (1953) 41 Cal.2d 180; Novak v. Dewar (1961) 55 Cal.2d 749; Schmitt v. Henderson (1969) 1 Cal.3d 460. 
    Plaintiff has neither cited or discussed any of these cases in her motion for a new trial. However, Defendants are ever mindful of their ethical obligations to bring such case authority to the attention of the Court. 
    Defendants submit that it is manifest from the opinions in the Gray, Novak, and Schmitt cases’ and the case authorities which followed them, that the decisive factor in all of the cases was the undisputed evidence that the pedestrian was crossing the street in a marked crosswalk under a green traffic signal. See, LaManna v. Stewart (1975) 13 Cal, 3d 417, 425-426. Thus, in all three cases the court held that the defendant did not yield the right of way to the plaintiff, and that such failure constituted a violation of the Vehicle Code and negligence as a matter of law in the absence of a reasonable explanation for the defendant’s conduct. See, LaManna v. Stewart (1975) 13 Cal.3d. 417, 427. 
    The case at bar can be readily distinguished from Gray, Novak, and Schmitt cases on the basis of the compelling evidence in this case that Plaintiff Karen [S]. was considerably outside the marked crosswalk at the time she was struck by the car driven by [X]. 
    In addition, in the Gray and Novak cases, the court rejected the defendants’ attempts to justify their conduct that their attention to the crosswalk was temporarily diverted by another vehicle approaching the intersection. See Byrne v. City and County of San Francisco (1980) 113 Cal.App.3d 731, 741. And, in the Schmitt case, the defendant did not even offer an explanation for his conduct. Ibid. 
    The case at bar can therefore be further distinguished from the Gray, Novak, and Schmitt cases in that [X] had an altogether credible, sufficient justification for his conduct and his failure to see Plaintiff any earlier. The evidence at trial was that [X] did what might reasonably be expected of a person of ordinary prudence who desired to comply with the law, acting under similar circumstances. 
    [X] was confronted with adverse weather conditions, poor lighting, significant obstructions to his view, and a significant glare that impaired his ability to see pedestrians. Also, the evidence was that Plaintiff failed to exercise due care for safety, and Plaintiff was engaged in unsafe behavior at the time of the accident. [Mr. X] slowed the car to a safe speed that would allow him to see pedestrians and stop quickly; as he traveled through the intersection [X] did not stare fixedly ahead but continually scanned the scene for pedestrians and potential hazards; [X] kept the car under control at all times; and [X] was careful. 
    Based on the convincing evidence that Plaintiff was considerably out of the marked crosswalk at the point of impact, rather than apply the negligence per se doctrine set forth in BAJI 3.45, the Court should apply the general negligence standards set forth in BAJI 3.10 to [X] conduct. Judged by those standards, it certainly can not be said that weighing the evidence and considering the entire record, including reasonable inferences therefrom, the jury clearly should have reached a verdict that [X] was negligent. 
    Plaintiff begs the question in citing the cases of Cucuk v. Payne (1956) 140 Cal.App.2d 881 and Curland v. Los Angeles County Fair Assn. (1953) 118 Cal.App.2d 691. The proposed jury instructions discussed in both of these cases refer to that which is in "plain sight." In the case at bar, the evidence is that Plaintiff was not in plain sight, and that [X's] view of Plaintiff was substantially impaired and/or obstructed.
    Moreover, even assuming for the sake of argument that Plaintiff was struck by the car driven by [X] while she was in the marked crosswalk, [X] was not negligent. 
    In the case of Byrne v. City and County of San Francisco (1980) 113 Cal.App. 3d 731, 740, the appellate court held that negligence per se would be found for the violation of a statute only in the absence of a reasonable explanation for a defendant’s conduct. As discussed above, here [X] had an altogether reasonable explanation for his failure to see Plaintiff until it was too late to avoid her, even while he exercised due care. 
    Also, pursuant to California Vehicle Code Section 21950, Plaintiff was required to observe her rules of safety for safely crossing Tewksbury Avenue – which she plainly did not do. 
    To summarize, in reciting the evidence at trial, Plaintiff ignored the following evidence concerning the lack of negligence by [X]: 


1. The testimony of Plaintiff and [P] and the undisputed photographic evidence that plainly established Plaintiff’s lack of credibility in fixing the point of impact within the marked crosswalk, and which indicated the point of impact was considerably outside of the marked crosswalk. 
2. The credible testimony of Officer Hill that at the time of the accident the ground was wet; the street lights gave off a ‘yellow haze" that was "sort of dim"; the intersection was dim; and when wet, there was a glare that could impair someone’s vision. 
3. The credible testimony of Officer Hill that [X] stated that the intersection was kind of dim, and wet pavement reflecting off the ground impaired his vision slightly. 
4. The credible testimony of Officer Hill that on the morning he returned to view the scene, the weather was clear and dry, and there was no glare from the wet pavement. 
5. The credible testimony of [P] that the corner area was not well-lit; that there was a glare on the wet street pavement on Tewksbury Avenue in front of the Erickson Building; that the glare impaired his ability to see pedestrians on the sidewalk and on the street pavement at the corner of Tewksbury Avenue and Castro Street in front of the Erickson Building; and that the glare diminished the ability of headlights to illuminate things at the accident scene. 
6. The testimony of Plaintiff from which it could reasonably be inferred that at the time of the accident plaintiff was engaging in conduct which impaired Defendant’s ability to see her in time to avoid the accident. 
7. The credible testimony of [X] that the right front of the car struck Plaintiff, that Plaintiff came onto the hood of the car only so far as her waist, and that plaintiff did not hit the windshield of the car. 
8. The credible testimony of [X] that after the accident he looked closely at the front of the car, and did not observe any damage to either its front grill or hood. A photograph was taken of the car, a pool car, on May 6, 1996 (more than 3 months after the accident). A small portion of the right front grill was broken at that time. [Mr. X] had not seen any such damage when he looked closely at the car the morning of the accident. 
9. The credible testimony of [X] that he slowed the car to a safe speed that would allow him to see pedestrians and stop quickly; that as he traveled through the intersection he did not stare fixedly straight ahead but continually scanned the area for pedestrians; that the car was under control at all times; and that he was careful. 


    Furthermore, in reciting the evidence at trial, Plaintiff misstated or mischaracterized the following evidence concerning the lack of negligence by [X]: 


1. The street light depicted in Defendants Trial Exhibit No. 299 in evidence (Photograph) and the utility pole at the corner from where Plaintiff crossed Tewksbury Avenue depicted in Plaintiff’s Trial Exhibit No. 11 in evidence (Scale diagram) were significant obstructions to Defendants view of the accident scene. 
2. There was no evidence of Plaintiff’s position at the time Defendant stopped at and proceeded through the stop line for the traffic signal. There was no evidence of the relative locations of the parties, times and timing, rates of speed, distances, reaction times, and stopping distances to warrant Plaintiff’s assertion that Defendant had "ample time to see the plaintiff well in advance of the point of impact." 
3. The police photographs do not show that "the plaintiff was well into the intersection…at point of impact." 
4. The police photographs do not show that "the plaintiff was…in the crosswalk…at point of impact." 
5. There is wholly insufficient or no evidence that "the plaintiff was in plain view of the defendant’s headlights for a sufficient distance to allow the defendant to see the plaintiff and to avoid impact." To the contrary, there was no evidence of the relative locations of the parties, times and timing, rates of speed, distances, reaction times, and stopping distances to warrant any such conclusion. 
6. A glare was produced on the wet pavement where Plaintiff was crossing from light no. 3, not light no. 2. 
7. Officer Hill testified that the intersection was dim, and when wet, there was a glare that could impair someone’s vision; that [X] stated the intersection was kind of dim, and wet pavement reflecting off the ground impaired his vision slightly; and that he spoke to Plaintiff at the scene and plaintiff agreed that the intersection was dim, the rain does reflect, and those conditions could impair someone’s vision. Plaintiff testified that she included [X] in that statement to Officer Hill. [P] testified that there was a glare on the wet street pavement on Tewksbury Avenue in front of the Erickson Building, and the glare impaired his ability to see pedestrians on the sidewalk and on the street pavement at the corner of Tewksbury Avenue and Castro Street in front of the Erickson Building. 
8. [P] testified on cross-examination by Plaintiff’s counsel without contradiction that the glare diminished the ability of headlights to illuminate things at the accident scene. 
9. There was wholly insufficient or no evidence that "defendant looked, but did not see that which was in his view at a point where he could and should have taken measures to avoid hitting plaintiff." To the contrary, there was no evidence of the relative locations of the parties, times and timing, rates of speed, distances, reaction times, and stopping distances to warrant any such conclusion.   

 

111. CONCLUSION

 

After weighing the evidence and considering the entire record, including reasonable inferences therefrom, it can not be said the jury clearly should have reached a different verdict. Accordingly, Plaintiff’s motion for a new trial should be denied. 

Dated: June 25, 1998 
Michael Lee, 
Attorneys for Defendants Chevron U.S.A. INC. and [Mr. X]. 



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