Smyth v. Harris & Devine

STURTEVANT, J.

The plaintiff commenced an action to recover damages for injuries suffered in an automobile collision. After all of the evidence had been received the defendants made a motion for a directed verdict. The motion was denied and the jury returned a verdict in favor of the plaintiff. The entry of judgment was stayed and thereafter the defendants made a motion that the verdict be set aside and judgment be entered in their favor notwithstanding the verdict. That motion was granted and from the judgment entered in favor of the defendants the plaintiff has appealed.

On the evening of March 11, 1933, the defendant Turner had driven a truck owned by the other defendants, his employers, from Modesto to Oakland. Having reached Oakland he drove the truck westerly on East Fourteenth Street to a point some distance west of Fifty-seventh Avenue. At that point he drove to the right-hand side of the street and parked the truck and trailer and alighted and went diagonally across the intersection to a coffee shop where he ate a sandwich. In a little while he returned to the truck, put out the lights, entered the cabin, removed his shoes, and went to sleep. Across the street there was an overhead street light which threw its rays from 50 to 75 feet. Turner

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remained asleep in the cabin of the truck until after the accident had occurred.

In the meantime the plaintiff and his associates had held a whist party. At about 11 o’clock their host served them a hot toddy. Each had one drink. Between 1 and 2 o’clock in the morning the plaintiff and two young ladies left for their homes. In his 1929 model of a Ford convertible coupe, the plaintiff started to drive them to their respective homes. Eleanor Iverson was taken to her home near Sixty-sixth Avenue and East Fourteenth Street, where she alighted. Thereafter plaintiff and Kathleen Iverson proceeded to East Fourteenth Street, where they turned westerly and proceeded on the right-hand side. As the plaintiff drove westerly on East Fourteenth Street he passed a number of ears parked at the curb, clearing them by two or three feet. Approaching Fifty-seventh Avenue he changed his course and approached closer to the northerly curb. He was traveling between 23 and 25 miles per hour. The headlights of his car were illuminated, his windshield wiper was working, and he could see 30 to 60 feet ahead—clearly 30 to 40 feet. At the intersection of Fifty-seventh Avenue and East Fourteenth Street the illuminating vision of his headlights was cut down to from 20 to 30 feet ahead due to a large overhead illuminating light on the southwest comer of Fifty-seventh Avenue and East Fourteenth Street. As the plaintiff came into this intersection he was traveling about 25 miles per hour. Once in the intersection plaintiff slowed down to 20 to 22 miles per hour. Traveling at that speed under the atmospheric condition prevailing and the condition of the pavement the plaintiff testified that he could stop his car within 45 to 50 feet provided he did not skid. The night was dark, the pavement was wet, and a rain was falling at the time of the accident. The foregoing is a condensed summary of the testipióny given by the plaintiff. The distances, it may be assumed, were his estimates as he was not asked if he had made any experiments or measurements. For seven or eight years before the accident he had been enlisted in the navy but had a local residence with his brother in Oakland. East Fourteenth Street is 72 feet wide and Fifty-seventh Avenue is 36 feet wide. The truck and trailer were painted blue and loaded with barrels. Their length over all was 54 feet 8 inches; to the top of the load was 11 feet. As