Musgrove v. Zobrist

WILSON, J.

This action was brought to recover damages for the wrongful death of Edwin W. Musgrove and Phyllis Musgrove, who were killed in the accident hereinafter described and for personal injuries suffered by the survivors. Plaintiffs have appealed from the judgment in favor of defendant following the granting of a motion for a directed verdict.

Marjorie, Wayne and Phyllis were riding in an automobile driven by decedent Edwin at the time of the accident.

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When they were traveling in a northerly direction, about five and one-half miles south of Salinas, a truck and semitrailer owned and driven by respondent crossed the center line of the highway and struck the automobile in which the Musgrove family were riding. Edwin and Phyllis were killed and Wayne and Marjorie received severe injuries.

The accident occurred at about 1:20 o’clock in the morning of September 2, 1945. Respondent was driving at a speed of about 40 miles per hour. The highway consisted of two lanes divided in the center by a white line. It was straight for some distance in both directions from the place of the accident. The weather was clear.

Respondent had started at about 7:30 a. m., on September 1, 1945, from Sacramento. He drove to Oakland and left that city at 7:30 or 8 o ’clock in the evening for Los Angeles. His only stop between Oakland and the point of the accident was at San Jose. He had had no sleep after he left Sacramento.

Respondent testified that the first notice he had of anything out of the ordinary about his truck was when he heard a tire blow out and the truck swerved to the left over the line where it collided with the Musgrove car. He had seen the ear approaching on the other side of the highway from which he was "driving. He had a firm grasp on the steering wheel and tried to hold it but was unable to prevent his truck from turning to the left and striking the Musgrove ear.

Respondent further testified that after the accident he inspected his truck and found that both front tires were flat, the right front tire appearing to have been cut and the one on the left appearing to have been blown out. The tire on the left front wheel was a recapped or retreaded tire that he had purchased before leaving Los Angeles with a load which he delivered in Sacramento. Before purchasing the tire he and the salesman who sold it to him inspected it by putting it on a spreader and determined that it was in good condition. It had no sections, scars or breaks, the inside being perfectly smooth. He also stated that he inspected the tire throughout the entire trip, his last inspection having been at San Jose, where he stopped for fuel, and that the tire appeared at all times to be in good condition.