Nagamatsu v. Roher

BARNARD, P. J.

This is an action to recover for the death of a son of the plaintiff who was killed in a collision between an automobile driven by the deceased and another automobile driven by the defendant. The accident occurred at the intersection of Smeltzer Avenue and Cannery Street, in Orange County, about 6:30 P. M. on October 22, 1931. Cannery Street runs north and south and Smeltzer Avenue east and west. There was an unobstructed view in all directions at this intersection but it was dark at the time the accident occurred. The deceased was driving north on Cannery Street

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and the defendant was driving east on Smeltzer Avenue. The two ears met near the center of the intersection and came to rest in a ditch seven or eight feet deep which runs parallel to Cannery Street, near its easterly edge. The car driven by the deceased was upside down in this ditch, about opposite the north line of Smeltzer Avenue, and the car driven by the defendant was standing on its radiator in the ditch about 35 or 40 feet north of the other ear. The jury returned a verdict in favor of the plaintiff and from the judgment entered the defendant has appealed.

It is first contended that the evidence is not sufficient to sustain the verdict because the evidence for the respondent is so improbable that it cannot be believed and because the so-called physical facts, “backed up by the law of physics”, clearly demonstrate that the accident occurred because of the negligence of the deceased.

Considering first the claimed improbability of the respondent’s evidence. It is first argued that the respondent’s testimony, to the effect that he saw the appellant’s automobile coming from the west when it was a certain distance away, cannot be believed because the respondent also testified that he could only see a much shorter distance in front of the automobile in which he was riding. We see nothing unusual in the fact that the lights of another car approaching on a crossroad can be seen at a much greater distance than that at which objects may be distinguished by the aid of headlights on the car in which the observer is riding. It is further argued that the respondent testified that when his son’s car, going 15 miles an hour, entered the intersection he saw the appellant’s car about 200 feet west of the intersection, that it thus appears that the respondent’s car would travel 12 feet while the appellant’s ear traveled 209 feet, and that to do this the appellant ’s car would have had to travel at a speed of approximately 270 miles an hour, which is obviously impossible. Such arguments,- frequently made in such cases as this, are of small value because of the many uncertainties in the premises which are assumed. This is well illustrated here. It is in evidence that there was an 18-foot pavement on each of these streets. The appellant assumes that the impact occurred on the exact center line of Smeltzer Avenue and, therefore,assumes that the respondent’s car traveled nine feet on that pavement. For some reason he assumes that this car traveled