De Young v. Haywood

SHINN, P. J.

Plaintiff De Young instituted this action against Frank Haywood, Thomas L. Dooley, Wm. J. Cain and Barbara K. Lehmann, who before the trial had become the wife of Mr. Cain, for damages resulting from a collision between plaintiff’s Chevrolet passenger car and Haywood’s Mercury sedan driven by Dooley, who was Haywood’s agent, operating the car in the course of his employment. The verdict and judgment were in favor of plaintiff against Haywood and Dooley but in favor of Wm. J. Cain and Barbara K. Cain. Haywood and Dooley appeal.

The collision occurred north of Santa Barbara on a three-lane highway which at that point extended in an easterly and westerly direction. Plaintiff was driving westerly in the northerly lane which we will refer to as lane No. 3. Mr. Cain was driving eastward in an International truck loaded with hay; Mrs. Cain was following him in a pickup truck carrying several bales of hay; she had two children with her; she was in the right-hand lane which we will call lane No. 1. Dooley testified that as he approached the pickup from behind he was traveling 30 or 35 miles per hour, crossed into lane No. 2, speeded up to 40 or 45 miles per hour in order to pass the pickup but that the pickup started to move into the second lane; he was about 50 feet behind it at that time; he began “banging” on his horn; he continued to blow the horn but the truck remained half in lane No. 1 and half in lane No. 2; he thought the driver would hear him and move

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back into lane No. 1. He endeavored to pass the pickup, put on his brakes, but could not come to a stop. He testified “so I think I sideswiped the pickup and that threw me out of control.” He could not say what part of his. car came into contact with the pickup. He got about halfway past the pickup which was going at a speed of about 35 miles. He was knocked crosswise, part of his car being in the center lane and part in the third. He did not think there was room enough to pass the pickup and that is why he endeavored to stop. He did not see the Chevrolet until a few moments before the collision. In his deposition he said he saw the Chevrolet coming but thought he could pass the pickup in the center lane; he went into the second lane to pass the truck when he was about 100 feet from it; he kept “banging on the horn”; the pickup moved over a little bit; he saw no cars for a quarter of a mile ahead of him so he kept going straight ahead and the pickup then “eased’’over onto him, enough to make him lose control of the car; when he hit the brakes he skidded sideways. Mrs. Cain testified she was driving in lane No. 1 and did not leave it. There was another car about 40 feet ahead of her. Mr. Cain’s truck was also ahead of her and was traveling in the center lane just before the accident occurred. There was also a station wagon in lane No. 1 ahead of the car immediately ahead of her. Dooley drove the Mercury past her truck at a very great speed; she was going 35 or 40 miles an hour and she estimated the speed of the Mercury at 70 to 80 miles. The International truck was then in the middle lane about 100 feet ahead of her and 100 feet ahead of the Mercury. The Mercury swerved around the International and hit the Chevrolet head-on in lane No. 3. At this time the International was passing the station wagon. The collision turned the Mercury around until it was facing south. It was thrown across the road toward her; there was contact between the Mercury and the pickup. She put on her brakes but the Mercury hit the front left fender of her car; the parking lights were smashed in and the hub cap came off; this collision occurred in lane No. 1; the Mercury bounced back; the International was a little bit beyond the point of impact. Mr. Cain testified that he was driving the International ; just before the accident he was in the center lane in the act of passing a station wagon which was in lane No. 1; he had just passed the point of the accident when the Mercury and the Chevrolet came together. The front fender of the pickup was damaged. Plaintiff testified the Mercury was