Gamalia v. Badillo

PETERS, P. J.

Plaintiffs appeal from a judgment in favor of defendants rendered by the court sitting without a jury, and in which findings were waived. The sole contention of appellants is that the judgment is totally unsupported by the evidence, and that, under the evidence, defendant Louis G. Badillo, as a matter of law, was guilty of negligence proximately causing the accident out of which the injuries complained of arose. Appellants have filed a six and one-half page opening brief, in which not one authority is cited, and have not filed a reply brief. A reading of the transcript demonstrates that there is no merit to the appeal; in fact, the point urged approaches the frivolous.

The action arose out of an automobile accident that occurred on the main highway south of San Rafael at about 7:30 a. m. on September 30, 1939. Defendant, Louis G. Badillo, accompanied by his wife and another passenger, was driving his car northerly toward San Rafael at a speed of about thirty-five miles per hour. Plaintiff, Demetrio Gamalia, accompanied by his wife, was driving on the same highway in a southerly direction, that is, towards San Francisco. The highway is a three-lane highway, and, immediately preceding the accident, each of the automobiles was in its proper outside lane. As defendants’ car approached within several hundred feet of the Gamalia car, the axle on defendants’ car broke alongside the left rear wheel, causing that wheel to fly off, and causing the car to fall onto the brake shield. When

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this occurred the Badillo ear was proceeding down a rather steep grade. Badillo testified that the effect of the accident was to cause his ear, equipped with four-wheeled mechanical brakes, to lose its braking power. He tried both the foot brake and the emergency brake, but neither would stop the car. The car was zigzagging back and forth, and he tried to manipulate the steering wheel so as to keep the ear on his side of the highway. After his car had proceeded about one hundred and sixty feet, it turned sharply to the left and crashed into the side of the Gamalia car that was coming up the grade. The accident occurred in the lane of the highway in which Gamalia was properly driving. As a result of the collision, Mrs. Gamalia sustained injuries from which she died, Mr. Gamalia incurred minor injuries, and the Gamalia car was damaged.