Markham v. Hancock Oil Co.

BARNARD, P. J.

The appellant was injured in a collision between an automobile driven by him and a combination track and trailer owned by the respondent Alameda Oil Company and driven by the respondent Bunch, which occurred about 11 o’clock on the night of January 14, 1933. The respondent Bunch was driving the truck easterly on Foothill Boulevard, a state highway, which is divided and clearly marked into three traffic lanes. Intending to turn north on a side street and when 150 feet from the intersection, he put up a mechanical signal indicating a left-hand turn and pulled into the center lane. When he reached the intersection he stopped to permit other cars to pass. He testified that at this time he observed the appellant’s car approaching from the east, and then some 600 feet away. While making the turn at a low rate of speed and after the entire truck had passed to the north of the paved portion of the highway, with the front end and the cab thereof entirely north of the intersection proper, the truck was struck on its right side and just to the rear of its cab by the car driven by the appellant.

In this action, which followed, a jury returned a verdict in favor of the appellant for $3,000. The respondents’ motion for a new trial was granted and from that order this' appeal is taken. While the motion was made upon all of the statutory grounds, the order appealed from did not state that it was granted upon the ground of insufficiency of the evidence and it must, therefore, be presumed that the same was not made upon that ground.

(Phillips

v.

Powell,

210 Cal. 39 [290 Pac. 441];

Baroni

v.

Rosenberg,

209 Cal. 4 [284 Pac. 1111].) In support of the order, the respondents contend that several instructions were erroneously given and that certain evidence was improperly admitted.

One instruction given, based upon subdivision (b) of section 131 of the California Vehicle Act, included the following: “I therefore instruct you, that if you find that the automobile in which the plaintiff was driving was so close to the intersection as to constitute a hazard at the time involved here ... it was the duty of the driver of said defendant’s truck to have yielded the right of way, and a

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