Lombard v. Swall

THOMPSON, J.

The defendants have appealed from an order granting a new trial in an automobile casualty case after a verdict had been returned in their favor. It is contended the judge abused his discretion in granting a new trial for the reason that there is no substantial evidence of the negligence of the defendants.

At 11 o’clock on the night of January 14, 1932, the defendant Ben Hicks was driving a heavily loaded truck and trailer belonging to the other defendants along the highway four miles east of Tracy. The paved portion of the highway at that point is 21 feet in width with an eight-foot shoulder on either side. A wet snow was falling. The highway was covered with a coating of snow. The truck and trailer were each equipped with two green clearance lights on either side, and the trailer had a red tail-light, all of which were burning at the time of the accident. Until just previous to the accident the driver had experienced no engine trouble. There was no mechanical defect in the truck machine. It was equipped with good brakes. Hicks had observed two other automobiles following behind his truck. The nearest one, which was

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driven by S. W. Curtis, was about a block behind the truck, when suddenly, without previous warning, the carburetor of the truck began to sputter. Mr. Hicks testified that he immediately turned his truck toward the right-hand side of the highway and reached a point where the right wheels of his vehicle were off the concrete pavement about two feet on the shoulder of the roadway. The truck had run a distance of about one block after the trouble began when he brought it to a stop by applying the brakes. The instant that the truck stopped the plaintiff’s Chrysler sedan crashed into the rear end of the trailer and the plaintiff was seriously injured. Hicks said that he had been running at the rate of 25 or 30 miles an hour prior to the time when the carburetor began to sputter. He knew the other cars were following in close proximity. He also knew that the highway was covered with wet snow, and that snow was obscuring the vision to some extent by adhering to the windshield. After he stopped it appears that he merely switched the gasoline feed to another tank and the truck continued to run without further difficulty.

Mr. Curtis testified that he was driving an Oakland coach at the rate of about 20 miles an hour, and that his vision was blinded by the accumulation of snow on his windshield and the glare of the headlights of the plaintiff’s machine which was following about 50 feet behind his car. Suddenly he saw the dark object, -which proved to be defendant’s truck, about 20 feet ahead. There was also an approaching automobile on the left-hand side of the highway. He had not previously seen the defendants ’ truck. Nor had he seen the tail-light on the trailer. Believing that it would be impossible for him to stop in time to avoid a collision, he swerved around the right side of the truck, traveling on the shoulder of the highway, until he returned to the paved portion thereof ahead of the truck, where he stopped.