Enz v. Johns

This is an appeal from a judgment for plaintiff in a personal injury case tried without a jury by the court.

The cause of action arose from an automobile collision which occurred at about 4:30 P. M., June 30, 1929, at the intersection of Twenty-seventh Street and S Street, which streets intersect at right angles, Twenty-seventh Street extending north and south and S Street east and west, in the city of Sacramento, California. Plaintiff and respondent was driving his automobile toward the south on Twenty-seventh Street as he approached the intersection. The defendant and appellant approached the intersection from the west on S Street. The machines collided in the intersection at a place on the west side of Twenty-seventh Street, about 7 feet from the west curb line of Twenty-seventh Street and 9 or 10 feet north of the south curb line of S Street, and near the southwest corner of the intersection. When the respondent, at the lawful rate of 15 miles per hour, reached the intersection, he looked to the left for traffic, then to the right, and saw appellant approach from his right at a place distant 75 to 100 feet west of the intersection, driving at an estimated speed of 40 to 45 miles per hour. Plaintiff’s car, after the impact, swung to the left, stopping near the southeast corner of the intersection. Plaintiff was thrown to the pavement, receiving the personal injuries of which he complains. The appellant’s car after the impact swung to the right and came to rest at the curb line of Twenty-seventh Street, south of the intersection.

Respondent saw appellant’s car at all times from the moment he first observed it until the moment of collision. He testified that the brakes on his car were in good order; that, however, he did not apply his brakes because he believed defendant would yield the right of way to him and that defendant had “plenty of time to let me pass her”.

Defendant’s car was damaged on the left side, the left front door being curved in, the glass broken, the left-hand wheel “smashed”, and the sun visor broken. There is no evidence of the swerving of either car before the impact, each had continued in an undeviating path of travel until after the impact. The physical marks of the collision upon the automobiles, notwithstanding the conflict in the testimony, seem to indicate that appellant’s automobile had reached a point, possibly 3 or 4 feet in advance of the right front car wheel of respondent’s car.

On cross-examination plaintiff was asked the following questions: “Q. Why didn’t you put your brakes on? A. Well, I was going right along, because I think she gave me right of way. Q. You saw her 75 to 100 feet back from the property line going 40 to 45 miles an hour, didn’t you? A. Oh, have plenty of room to let me pass her.”

The evidence upon the trial supports the court’s finding as to defendant’s negligence. She was violating the provisions of the California Vehicle Act, sections 113 and 131 (Stats. 1923, pp. 553, 560; Stats. 1927, p. 1436, sec. 30, and Stats. 1925, p. 412, see. 15), in effect at the time of the accident. The sole question on this appeal is whether or not there is sufficient evidence to support the court’s finding that there was no contributory negligence• on respondent’s part.

The appellant insists that the finding is against the evidence and argues that, “In zeal to establish the negligence of the defendant, the plaintiff has testified to facts which convict him of contributory negligence, as a matter of law. Without slackening his speed for an instant, according to his own story, he drove in a direct line across the intersection, taking no single measure to prevent the accident. Was the plaintiff ordinarily, or in any other wise, prudent, and if so, in what did his prudence consist?”

Section 131 of the Vehicle Act (Stats. 1925, p. 412, sec. 15) in effect at the time of the accident was as follows, to wit: “When two vehicles approach an intersection of public highways at approximately the same time, the vehicle approaching from the right shall have the right of way, provided such vehicle is traveling at a lawful speed.” Under that section and legal inferences flowing from it, the respondent was entitled to the right of way in crossing the intersection. He actually had entered upon it when appellant’s car was approximately 100 feet distant. The latest expression of the appellate court yet printed in the reports is Couchman v. Snelling, 111 Cal. App. 192 [ 295 Pac. 845 ]. We quote in reverse order herein two paragraphs of this opinion, which we believe in point, and under the cited authorities therein are decisive of the question involved in this appeal:

“Where a car has actually entered an intersection before the other approaches it, the driver of the first car has the right to assume that he will be given the right of way and be permitted to pass through the intersection without danger of collision. He has a right to assume that the driver of the other car will obey the law, slow down, and yield the right of way, if slowing down be necessary to prevent a collision. (Keyes v. Hawley, 100 Cal. App. 53 , 60 [ 279 Pac. 674 ].) Nor is a plaintiff required to yield the right of way to one a considerable distance away whose duty it is to

“The circumstances under which a court can declare that certain acts constitute contributory negligence as a matter of law are rare. (Swartz v. Acme Express and Drayage Co., 102 Cal. App. 615 [ 283 Pac. 358 ].) It can seldom happen that the question is so clear from doubt that the court can undertake to say as a matter of law that the jury could not fairly and honestly find for the plaintiff. (Schierhold v. North Beach & M. R. Co., 40 Cal. 447 , 453.) The question is usually one of fact and becomes a question of law only when the evidence is of such a character that it will support no other legitimate inference. (Zibbell v. Southern Pac. Co., 160 Cal. 237 [ 116 Pac. 513 ].) Contributory negligence being an affirmative defense, the burden of proving it is on the defendant. It is necessary, therefore, for him to show that the acts of plaintiff failed to meet some standard of prudence in order to take the issue from the jury as a question of law alone.”

The testimony on this appeal viewed in the light most favorable to plaintiff, as it must be, shows no affirmative act of negligence on the part of respondent. He had the right of way, was driving at a lawful speed, had almost succeeded in crossing the intersection when the machines collided, and his only legal sin, if any, was one of omission and not of commission.

The situation presents an interesting point for mathematical analysis in determining the question as to what an ordinarily reasonable and prudent person, in respondent’s then situation, would or should have done. A car traveling 45 miles per hour covers 66 feet per second. At 15 miles per hour it covers 22 feet per second. In the 1% seconds

This computation serves to show that a question of fact as to contributory negligence was presented to the trial court for determination. That court’s finding, although upon conflicting testimony, is conclusive on appeal.

The following authorities cited by respondent are all in point in support of this court’s conclusion that the judgment of the lower court must be affirmed: Commonwealth Ins. Co. v. Riverside-Portland Cement Co., 69 Cal. App. 165 [ 230 Pac. 995 ]; McMullen v. Davenport, 44 Cal. App. 695 [ 186 Pac. 796 ]; Collom v. Block, 70 Cal. App. 33 [ 232 Pac. 486 ]; Robinson v. Clemons, 46 Cal. App. 661 [ 190 Pac. 203 ]; Simonsen v. Christopher, 186 Cal. 788 [ 200 Pac. 615 ]; Gilmore v. Los Angeles R. Corp., 211 Cal. 192 [ 295 Pac. 41 ];

The judgment is affirmed.