Barry v. Maddalena

MOORE, P. J.

—As heirs at law of Bobert Emmett Barry, appellants sought damages from defendants resulting from the wrongful death of deceased. On this appeal they contend (1) that the evidence is insufficient to support a finding that defendants were free from negligence or (2) that Mr. Barry was guilty of contributory negligence, and (3) that certain instructions were erroneous.

(1) About 11:30 p. m. on the night of July 30, 1942, defendant Clem Maddalena and his minor son, Clemente, were proceeding northerly in the father’s Chevrolet on U. S. Highway 101 with Clemente in the driver’s seat. The weather was

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clear of fog or cloud and the pavement was dry as they approached the city of Santa Marguerita. The concrete highway was divided in the center by a white stripe. On each side was a six-foot smooth shoulder. They were still in the open country traveling at about 45 miles per hour when an automobile with glaring headlights, going southerly, passed them. On approaching the south-bound vehicle Clemente lowered the beam of his headlights. Within less than six seconds after passing the south-bound car the Chevrolet collided with the deceased, a pedestrian. The left fender and lamp struck him, indicating that .he was east of the highway’s center. The collision was the first knowledge defendants had of the presence of any object on the pavement notwithstanding both of them had been on the lookout just prior to the impact.

It is not essential to the validity of the judgment that the jury should have found that the driver was free from negligence. However, such reasonable inferences may be drawn from the established facts as to justify a finding that Clemente was not negligent. His speed did not exceed that which was lawful; he traveled in the right lane of the highway; he kept a lookout for perils of the night. Whether he failed in any of those respects was a fact which the jury impliedly determined in his favor. The brilliant headlights of the south-bound car may have dimmed Clemente’s vision.

(2) Not only was the finding of Clemente’s freedom from negligence justified, but the evidence warranted the implied finding of the contributory negligence of deceased. Whether deceased by his own negligent act caused his collision with the Chevrolet was a question for the jury. If deceased had been walking southward, he was presumptively negligent- in violating the rule which requires that a pedestrian on the highway in the open country walk close to the left-hand edge. (Veh. Code, sec. 564.) ’If he had been northward bound he should have been on the outside of the westerly lane.