Uribe v. McCorkle

MARKS, J.

This is an appeal from a judgment for defendant entered after his motion for nonsuit had been granted. It would appear that the motion was granted because the trial judge was of the opinion that plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff was the father of Nadine Uribe, four years old, who was fatally injured in an automobile collision which occurred at about 6:30 o’clock p. m. on May 14, 1939, on Ventura Avenue, east of Centerville, in Fresno County. The action was brought to recover damages caused by the death of Nadine.

Just before the accident plaintiff was driving west on Ventura Avenue which runs east and west at the point in question. He saw a sign on the north side of the road which advertised tomato plants for sale. This was near a private farm road leading from Ventura Avenue northeasterly to a farm house. Desiring to buy some plants, plaintiff drove west on Ventura Avenue about one-tenth of a mile beyond the junction of the farm road with Ventura Avenue, looked in both directions, saw no approaching vehicle, made a “U” turn and proceeded east toward the farm road. Just west of the turning point Ventura Avenue curves to the north so the extent of his view to the west and north is not made clear. In making the “U” turn the automobile was driven to the south edge of the twenty-foot Ventura Avenue pavement and perhaps the right wheels went off the pavement and onto the shoulder. After turning east plaintiff gradually bore-to the

[63]

left and approached the center line of the pavement. When between 12 and 15 feet west of the point of collision, which was opposite the private road, plaintiff drove his car over the center line and started his left turn into the farm road. He gave a signal for the left turn just as his ear crossed the center line. When he had proceeded between 12 and 15 feet, and when his car was between 62 and 64 inches north of the center line of Ventura Avenue, the right rear bumper of defendant’s car caught the left rear fender or bumper of plaintiff’s car which turned over on its side pinning Nadine under it causing her death. Defendant’s ear was passing plaintiff’s during the left turn made by plaintiff. Defendant swerved his car to the left and it came to rest on the private road about 20 feet from Ventura Avenue. Plaintiff testified that he heard no horn nor other warning that defendant intended to pass him. Plaintiff was driving not over 15 miles an hour and defendant was driving about 40 miles an hour.