Polk v. Weinstein

STURTEVANT, J.

The defendants have appealed from a judgment awarding the plaintiff damages for injuries suffered in an automobile collision. The collision occurred- between Livermore and Tracy on the highway at a point east of Altamont and almost in front of the Mountain House. The main highway in that neighborhood is an up-grade from west to east and is a gradual curve from left to right as one drives toward the east. To the right of the point of collision a hill arises toward the south. Scaling the map contained in the record, directly to the south the hill arises approximately 16 feet. Opposits the hill and extending to the north is a branch road which leads to Byron. Both east and west of the'point of collision the highway consists of a strip of con

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crete pavement 15 feet wide. A white line divides the concrete pavement into two equal lanes. Immediately to the south of the concrete pavement at the point where the collision occurred is a strip of oiled macadam 12 feet wide. Immediately to the south of the strip last mentioned is a graveled shoulder 12 feet wide. The distance from the white line to the southerly edge of the graveled shoulder is a triflp over 31 feet.

At about 8 A. M. on December 20, 1934, the plaintiff was driving a Chevrolet ear easterly. Her mother was seated on the front seat on the right-hand side. Her father was Seated on the rear seat on the left-hand side. They were traveling at a speed estimated at between 20 and 25 miles a^ hour and were conceded to be in the right-hand lane. The ¡plaintiff testified that she was two feet on the right-hand side of the white line. The testimony shows that the morning had been foggy. As to the exact condition at the time and ¡place of the accident the testimony was conflicting. One witness testified that visibility was so cut down that moving cars could not be seen more than 50 or 60 feet away. ¡ The plaintiff testified that visibility ahead was not less I than 200 feet. Others testified that the weather was clear. The defendant Jacob Weinstein was driving a truck loaded' with 288 boxes of oranges which were stacked eight or I nine boxes high, loose oranges scattered over the top rows of boxes, and the load covered with a canvas. He had left Losj Angeles the night before and was going to Oakland. Hd had crossed the top of the mountain and was running down hill at a speed estimated at between 30 and 35 miles per hour. A negro laborer was riding with him. Shortly after the truck passed over the summit, Mr. Crump approached from the east driving his automobile from Modesto to Oakland. He followed the truck, a short distance to the rear, until the jaccident happened. The plaintiff testified that when she first saw the defendants’ truck it was about 200 feet away, coming fast down the hill. As it approached her it seemed to her that defendants ’ right wheels were on the white ¡line. She turned toward the right, but in her opinion she did not get more than one foot farther to the right. As the truck continued to approach it swerved slightly to its left, ¡then