Lee v. Hackney

GRIFFIN, J.

Plaintiff brought this action against defendants for injuries sustained as a result of an automobile accident at the intersection of Nineteenth and A Streets in the city of Bakersfield. Plaintiff, accompanied by a guest, was driving her son’s Plymouth sedan northerly on A Street, in the daytime, on September 19, 1949. Defendant Edna A. Hackney was proceeding alone westerly on Nineteenth Street in her husband’s 1938 Chevrolet car. Both streets are approximately 54 feet wide. Large trees are growing in the parkway at the four corners of the intersection. No center lines are marked in the streets and no boulevard stop signs are involved. A 15-mile speed zone is indicated.

Counsel for defendants, at all times, have conceded negligence on the part of defendants, and rely entirely on the claimed contributory negligence of plaintiff, as pleaded, to bar a recovery. The jury returned a verdict in favor of defendants. Plaintiff appealed and now claims: (1) That there was no evidence of contributory negligence; and (2) accordingly, the trial court committed prejudicial error in giving an instruction on that subject.

A brief résumé of plaintiff’s testimony bearing on this question shows that when she was about 15 feet from the intersection she was driving at about 15 miles per hour; that she then looked to her left on Nineteenth Street and saw no cars approaching; that when she was about to enter the intersection she looked to her right easterly on Nineteenth Street and saw a car half a block away, approaching this same intersection; that she could not judge its speed; that she shifted into second gear at the time; that she then looked to her left again, shifted into high gear, and as her ear passed over the center of Nineteenth Street, in the intersection, she looked to her right again and saw the Hackney car about 50 feet from the intersection; that she immediately

[446]

turned her ear to her left to avoid a collision hut was unsuccessful ; that the left front portion of the Hackney car struck the right front portion of plaintiff’s car; that she and her passenger were thrown from her car, which went on and came to a stop at the corner after running into a tree; and that she was severely injured.

Her passenger, Mrs. Childers, related about the same story. She placed the Hackney ear at a point east on Nineteenth Street about 150 feet from their car when plaintiff’s car was near, the intersection. She testified that defendants’ car was traveling at about 35 miles per hour at the time; that she saw it again about 100 feet from the intersection when plaintiff entered the intersection; that the next time she saw it plaintiff’s car was crossing the center of Nineteenth Street and the Hackney car was then 20 to 25 feet away, traveling about 35 miles per hour; that Mrs. Hackney was looking to her right, or northerly on A Street; that she never said anything to Mrs. Lee about what she saw; that she screamed and the ears hit in the manner previously described at a point about 5 feet north of the center of Nineteenth Street.