Szarapski v. Joaquin

BARNARD, P. J.

This is an action for damages resulting from a collision between a truck-tractor and trailers, driven by the defendant Sudgen and owned by the other defendants, and a Chevrolet automobile in which the plaintiff and three other soldiers were returning to March Field. A jury returned a verdict in favor of the defendants, and the plaintiff has appealed from the judgment.

The accident happened at 1 a. m. on February 25, 1952, on Highway 99. This was a divided highway, consisting of two eastbound lanes and two westbound lanes separated by a 70-foot island, with a hard surface shoulder adjacent to the eastbound lanes. Both vehicles were proceeding easterly in the outside or southerly of the eastbound lanes.

Sudgen testified that he had been traveling at about 45 to

50

miles an hour; that shortly before the accident he had not passed any vehicles; that a truck and trailer outfit had passed him and was proceeding about a mile ahead of him in the same lane; that for 15 or 20 minutes before the accident it was the only vehicle ahead of him, traveling in the same direction, with lights which were visible to him; that a westbound truck approaching on the other side of the island flashed a spotlight and blinked it on and off; that this sort of signal is used by truck drivers either to hail another driver or to indicate that there is trouble ahead; that he looked over at the passing truck for about a second, but was not looking

[29]

at it as it went by; that “when he approached I glanced at him but not when he went by”; that when he looked ahead he saw the Chevrolet about 50 feet ahead of him; that he was going about 45 miles an hour when he saw the Chevrolet; that he turned his wheel to the left and applied his brakes, “and tried to miss it”; that his right bumper and fender struck the left rear of the Chevrolet; that he came to a stop on the shoulder, and walked back; that he saw three men lying on the shoulder; that he did not notice whether the Chevrolet’s headlights were burning; that “I didn’t pay any attention, I was trying . . . ”; and that he saw that its taillight assembly was demolished.

He further testified that “about a second” elapsed from the time he first saw the Chevrolet until the impact; that the Chevrolet had no lights that he could see; that “it just loomed up in the night”; and that “it didn’t have no lights I could see at all.” When asked if the Chevrolet was in motion he replied, “It wasn’t moving or it was moving awfully slow, it looked like it was stopped to me.” When asked how far ahead his headlights would cast a beam, he replied: “I don’t know. A 100 feet I imagine,” and that “I never did measure it.” When asked whether at the scene of the accident he had made a statement to the effect that the Chevrolet did not have its lights on, he replied: “I just said I didn’t see no lights,” and also that at the hospital and at the highway patrol office he had told the officer “I never seen no lights.” He also testified that he never told the officer that the Chevrolet was in motion.