Carr v. Holtslander

[590]

SHINN, P. J.

W. W. Carr and Thelma C. Carr, husband and wife, brought this action against Robert William Holtslander and others for damages resulting from a collision between an automobile driven by Mr. Carr, in which Mrs. Carr also was riding, and a car driven by defendant Holtslander. Mr. Carr departed this life before the trial and Mrs. Carr was substituted in his stead as administratrix of his estate. In a trial to the court judgment was for the defendants, and Mrs. Carr appeals individually and as administratrix. We shall refer to Holtslander as defendant. The respondent’s brief is filed on behalf of the estate of defendant Brown, deceased.

Pacific Coast Highway is a north and south six lane highway extending southerly from Long Beach to and beyond Laguna Beach. It is intersected by 7th Street which extends easterly from the highway at an angle some 20 degrees south of east. At about midnight Mr. Carr was driving north on the highway in the inside of the three easterly lanes. Holtslander was driving south in his inside lane. The cars were lighted and the night was clear and dry. Holtslander made a left turn at'7th Street and when his car was in the southeast part of the intersection, south of the center lane of 7th Street and about midway between the center line and the east line of the highway, it was struck on the right front side by the plaintiff’s car, as a result of which Mrs. Carr suffered personal injuries and Mr. Carr injury to his property. The court found that defendant was guilty of negligence and that Mr. Carr was guilty of contributory negligence, which was imputable to his wife. It is contended on the appeal that as a matter of law Mr. Carr was not guilty of contributory negligence. The point has merit. With full appreciation of the familiar rules which require a reviewing court to take that view of the evidence and inferences which tend to support the findings of the trial court, we are obliged to conclude that the question of contributory negligence, as it is presented by the record, is one of law, and that the finding that Mr. Carr was guilty of contributory negligence is not supported by the evidence.

Holtslander testified that when he was a block away-he observed that the green light was on at 7th Street for traffic on the highway; he slowed down as he approached the intersection, gave a signal for a left turn, watched for two cars traveling north to pass in front of him, observed plaintiffs’ car some 60 feet behind the second car that had