Vitali v. Straight

HOUSER, P. J.

—Plaintiffs appeal both from a judgment which was rendered on the return of a verdict in favor of defendants and from an order by which plaintiffs’ 'motion for a new trial was denied. The action was brought by Benedita Yitali, both in her individual capacity and as guardian for her and her former husband’s minor children, and by Mary Yitali, for damages which were alleged to have been sustained by them by reason of the wrongful death of Benedita Yitali’s former husband, which resulted from a collision that occurred between him personally and an automobile that was operated by defendant Ray H. Straight. The accident occurred at night, at a point where a main thoroughfare was intersected on one side by one street and on the other side by two streets, neither of such intersecting streets being at a right angle with the main thoroughfare. The night was dark, but clear. A portion of the main thoroughfare was paved; and' immediately preceding the happening of the accident, and until he was at a distance of from 40 to 45 feet from the point where the accident occurred, the said defendant was driving his automobile at a rate of speed estimated at from 40 to 45 miles per hour. The brakes, the horn, and the headlights of the automobile were “in good working order”, and the headlights were lighted. Other than the defendants, no living person witnessed the happening of the accident. But, as was testified by defendant Ray H. Straight, although he

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could see “a half a mile”, he did not see Vitali. until his automobile was within 40 to 45 feet from him, at which time Vitali was running diagonally across the main highway, with his back turned partly toward the approaching automobile, and at a point nearly in the center of what might be termed the intersecting streets. Immediately upon discovering Vi-tali’s position, the said defendant sounded the horn of the automobile, applied the brakes thereof, and “swerved” the automobile to the right. It skidded “something like thirty feet”. The speed of the automobile was slowed, so that at the instant when the impact between it and Vitali took place, the automobile was traveling at about the rate of from 20 to 25 miles per hour. From the time when the said defendant first saw Vitali until that when the collision occurred, the said defendant did not see the face of Vitali. In that regard, the said defendant testified as follows: “At the point of collision he had his (Vitali’s) back to me with his right hand out this way, I would say in this position (indicating). Q. Did you ever see the deceased’s face, or any portion of his face? A. Before the accident, you mean? Q. Yes. A. I saw the back of his neck. Q. When did you see that? A. Just before we struck. . . . He seemed to increase his speed.” Said defendant also testified, in substance, that: “My lights were turned on for country driving. Vitali was running in rather an unbalanced condition, I would say, sort of sideways. It was hard to see, but it looked like he had something under his left arm or maybe in his left hand. After the collision occurred, one of the officers came up and found several pieces of glass on the highway, part of which was colored glass. It was curved. ...”