Bertoli v. Hardisty

[284]

PEEK, J.

This is an appeal by plaintiffs from an adverse judgment in an action to recover damages for personal injuries. No attack is made upon the sufficiency of the evidence. Their main contentions are that the court erred in its instructions to the jury on the presumption of due care, contributory negligence and the right of way at intersections.

The accident occurred at the intersection of Steele Lane and Highway 101, a freeway in Sonoma County. From photographs included in plaintiffs’ opening brief, Steele Lane appears to be an ordinary two-way street running in an easterly-westerly direction. Highway 101 is a four-lane divided freeway running in a northerly-southerly direction, having so-called traffic islands at its intersection with Steele Lane. Immediately to the east of the freeway and running parallel thereto is Armory Drive, while immediately to the west, and also parallel thereto, is Cleveland Avenue, Thus, before actually entering Highway 101 from the west, it is necessary to first cross Cleveland Avenue. Both of these streets are separated from the freeway by a wire fence. Metal stop signs are located at the intersection of Steele Lane and Cleveland Avenue and the intersection of Steele Lane and the freeway.

As a result of the injuries suffered by him, plaintiff Charles Bertoli was unable to testify at the trial. Mrs. Bertoli, who was riding with her husband, gave somewhat vague and conflicting testimony concerning the events preceding the accident. According to her testimony, she and her husband were driving east on Steele Lane. They came to a stop at Cleveland Avenue and looked for traffic on the freeway, proceeded forward and likewise stopped before entering the same. However, in a deposition taken some time before the trial, she stated that the only stop they made was at Cleveland Avenue; that they then proceeded across the westerly, or southbound, lanes of the freeway and either paused or did not pause at the traffic island in the center thereof. In her deposition she stated first that their car did not pause at the traffic island, and then that it might have stopped at the same. She further testified that her husband did not speed up as he turned to the north on the freeway. Again referring to her deposition, she stated he did speed up after pausing at the traffic island. Her testimony was indefinite as to whether she saw the defendant driver’s car just before the impact, and she was uncertain as to whether or not she had seen another automobile immediately to the rear of defendant driver’s car. Mrs. Bertoli further testified that her husband was 72 years of age at the time of the accident