Jackson v. The Lactein Co.

The judgments rendered in the above-entitled causes are and each of them is hereby affirmed.

The several plaintiffs above named commenced their respective actions against the defendants, The Lactein Company, a corporation, and David L. Robinson, to recover damages for alleged injuries resulting from the collision of a Ford sedan, driven by plaintiff Jackson, in which plain

As appellants’ main specification of error relates to the alleged insufficiency of the evidence to support the verdicts and judgment and as we find, upon examination of the record, abundant, ample, competent evidence in support thereof, we shall endeavor to limit our discussion to a bare statement of the essential facts.

At the time in question, September 17, 1926, about 8:40 A. M., the weather being dry and clear, plaintiff Jackson, with plaintiffs Mary Haver, Anna Overman and a Mrs. Richards, was driving in a Ford sedan in a southerly direction on the Crows Landing road about twelve miles south of Modesto, California. Defendant Robinson, a young man then nineteen and a half years of age, driving a White truck, was at the same time proceeding northward on said highway. The road consisted of practically a straight strip of concrete pavement approximately twelve feet wide, with sand and dirt, wet in places from rice irrigation, about two inches below the surface of the pavement, extending along both sides. The truck had double wheels in the rear, protruding some six or seven inches beyond the line of the front wheels. Its width through the rear wheels was seven feet. The Ford was five and one-half feet wide. It will, therefore, be seen that for these vehicles to pass on a twelve-

As above stated, with respect to many particulars surrounding the actual happening of the accident, a direct conflict in the ■ evidence ivas resolved in favor of plaintiffs. Some of these points will now be stated. Defendant Robinson stated that in his opinion the speed of the Ford was around thirty miles per hour; practically all the other witnesses testified that it was about twenty-three, or between twenty and twenty-five miles per hour, which latter speed is consonant with the distance traveled by plaintiffs during the time intervening between their morning departure and the accident. Defendant Robinson testified that he was driving the truck around thirty miles an hour. The various plaintiffs, and witness Baker, placed its speed at from forty to forty-five miles an hour. Defendant Robinson testified that he had pulled his truck “clear off the highway” and that the Ford was entirely on the pavement and in two feet from the outer edge. Plaintiff Jackson, on the contrary, testified that the truck was approaching in the exact center of the road and that the right wheels of the Ford Avere four feet in the sand. Mrs. Overman corroborated his testimony, stating that the wheels of the Ford were off in the sand, though she did not know just how far. Mrs. Haver testified that she was reading a neAvspaper at the time and did not notice what the situation was. Mrs. Richards, the other occupant of the Ford, testified that the truck was over the center line, that is, partly on the left side of the road. Mr. Baker testified that after the acci

The jury could well have credited the testimony of plaintiffs and of this apparently disinterested witness as to the speed of more than forty miles per hour and center position on the road of the truck and thereby concluded that if the right wheels of the seven-foot truck were in three feet on the highway, only two feet thereof remained, partly at least upon which plaintiff Jackson must drive his Ford in order to avoid being hit by said vehicle which was approaching him at such a rapid speed; hence that plaintiff was not negligent in failing to turn out even further in order to clear the rear wheels of the truck, but that said defendant was plainly negligent in maintaining on the narrow pavement such a position and such a speed. Furthermore, various witnesses also testified that the truck swerved dangerously at the moment of passing and hence plaintiff Jackson, having gotten safely past the front wheels, was still unable, even by the exercise of all due care, to avoid calamity. This latter testimony was also worthy of credit.

Certainly the sufficiency of the above showing to support a finding of negligence on the part of appellants can scarcely be denied, and it also furnishes a complete answer to appellants’ claim that the evidence established contributory negligence on the part of plaintiffs. The testimony which we have already set forth and other evidence equally clear found in the record produces the conviction that the conclusion reached by this jury was well warranted under the circumstances of the case.

One other complaint is made by appellants, to wit, that the trial court committed reversible error in giving to the jury an instruction in part to the effect that appellants’ plea of contributory negligence presupposed the existence

Finding the various claims of appellants to be without merit, we have reached the conclusion first herein set forth.

Richards, J., Shenk, J., Seawell, J., Curtis, J., and Waste, C. J., concurred.