Shedd v. Downie

THOMPSON, J.

The plaintiff has appealed from a judgment which was rendered against him in a suit for damages for injuries sustained in an automobile casualty.

At 8 o’clock at night, February 15, 1937, the plaintiff was engaged in collecting milk products along a route which he had traveled for five years. It was a very dark night. He was driving his milk truck easterly on a country road called Doersken Avenue four miles north of Denair in Stanislaus County. The highway was paved with asphalt 14% feet in width, with seven-foot shoulders on either side gradually

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sloping down to a shallow ditch. He drove his truck across the highway to the northerly side and parked at the premises of a customer named Wheatley to procure some cans of milk. Water stood in the ditches at various points, but it does not appear there was any water opposite the Wheatley place. At that point there was a cart containing cans of milk standing near the property line about twelve or fifteen feet from the place where he stopped his machine, which cans he intended to transport to his truck. The bed of the truck was six feet, ten inches in width. He parked the truck on the northerly side of the paved portion of the highway, as the defendant said. At least it extended over the paved portion a distance of four feet, with scant space between it and the cart for a machine to pass. His truck was headed easterly and it was left with the lights burning and the engine running. He had observed the headlights of a machine approaching from the east, at a distance of about a quarter of a mile, just as he crossed the highway to the wrong side. He paid no further attention to the approaching automobile, but got out of his truck and proceeded to cross the intervening space to obtain the milk cans from the cart. It was unusually dark at that point. Trees which grew along the margin of the highway in that vicinity helped to increase the darkness. There were no lights except the headlights from the two machines involved in the casualty.

As the defendant approached, driving his automobile at a rate of 25 or 30 miles an hour, he first observed the lights of the parked truck when he was 400 or 500 feet away, but he was unable to locate the position it occupied on the highway or to determine that it was stationary. He supposed it was a machine approaching on its proper side of the roadway. The defendant testified that he did not realize the truck was on the wrong side of the highway until he reached a point about 25 feet from the parked truck. He said he did not then realize the truck was stationary, but assumed the driver would guide his machine so as to pass him on the proper side and avoid a collision. The defendant thought he removed his foot from the accelerator to decrease the speed of his car. He did turn to his right hand until his machine was entirely off the paved portion on the graveled shoulder of the highway. His purpose was to pass the truck on the