Woebbe v. Sperry

STURTEVANT, J.

At about eleven o’clock p. m. on the night of November 18, 1939, the plaintiff was riding in an automobile as the guest of, and being driven by, Mr. Paulsen. The automobile was driven south on Van Ness Avenue and then turned easterly into Pine Street. The defendant John A. Sperry, Jr., was driving north on Van Ness Avenue along

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the eastern side of said avenue. Mr. Paulsen was driving a Dodge sedan, Mr. Sperry was driving a Ford sedan. At a point in the intersection, more or less controverted by the witnesses, the Ford car hit the Dodge car on its right-hand rear door. The plaintiff was injured. She sued to recover damages for the injuries sustained. The action was tried before the trial court sitting with a jury. The jury returned a verdict in favor of the defendants. A judgment was entered on the verdict and from that judgment the plaintiff has appealed and has brought up typewritten transcripts. The record discloses that in the trial court numerous exhibits were offered. It also discloses that a map drawn to scale was used throughout by both parties. It also discloses that photographs were introduced in evidence and that those photographs were used by both parties during the trial. Except as hereinafter mentioned no exhibit, map, or photograph has been certified to this court. While the trial was progressing both parties prepared instructions and requested the trial court, at the proper time, to give them. By stipulation the instructions so prepared by the parties were given by the court. Every instruction tendered was given.

Examining the opening statements it will be seen at once that the plaintiff contended Mr. Paulsen drove south on Van Ness Avenue; that, as he approached the intersection, he put out his hand indicating a left turn; and that he passed the center of the intersection and turned to go east on Pine Street. The plaintiff also testified to similar facts. On the other hand, from the opening statement of defendants, it will also be seen that they contended Mr. Paulsen drove to a point about ten feet north of the northerly property line of Pine Street, made a left turn, ‘ ‘ cut the corner, ’ ’ and drove easterly on Pine Street. They also contended that as he did so he gave no signal of his intention to make said turn, and made the turn after the defendant John A. Sperry, Jr., had entered the intersection and had crossed the middle line of Pine Street. The defendants called three eye witnesses to sustain their theory. From the beginning of the trial the defendants contended there were no “markers” in either Pine or Van Ness at said intersection indicating how or where a turn could be made.