Binford v. Purcell

MARKS, J.

Plaintiff and defendant had been friends for a number of years, and on December 9, 1930, were college classmates. On the afternoon of that day plaintiff was riding in the automobile of defendant south on First Street in the city of San Diego. At a point on the west side of First Street, about fifty feet south of A Street,

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the automobile driven by defendant came into collision with an automobile driven by B. B. Smith and a second car which was parked at an angle of about forty-five degrees to the west curb of First Street. Plaintiff’s head went through the windshield of defendant’s car and she received the injuries which form the basis of this action.

The action as originally filed sought damages from Adelaide Purcell and R. B. Smith. The case was tried before the trial judge sitting without a jury. He found Smith free from any negligence, and found Miss Purcell guilty of gross negligence which proximately caused the injuries of plaintiff and awarded her damages in the sum of $6,076. These were reduced to $4,000 on the motion for new trial.

The following questions are presented on this appeal: 1. Does the evidence support the finding that defendant was guilty of gross negligence which proximately caused the accident? 2. Was plaintiff guilty of contributory negligence? 3. Are the damages excessive?

We have studied the record and find the evidence sharply conflicting. There is evidence supporting the contention of defendant that just prior to the accident she was driving south on First Street at less than fifteen miles an hour and in a careful and prudent manner; that the Smith car suddenly left its position where it was parked at an angle of about forty-five degrees to the west curb of First Street and without warning backed into the front of defendant’s ear causing the accident. The trial court did not accept this evidence as true and found against this theory.

The evidence supporting the findings and judgment may be summarized as follows: First Street and A Street intersect each other at right angles. First Street is fifty-two feet in width between curbs and A Street probably about fifty feet between curbs. First Street descends to the south on the following grades: North of A Street, 2.8 per cent, across A Street, 3 per cent, and south of A Street, 3.4 per cent. Defendant drove her automobile south on First Street, from a point several hundred feet north of A Street to the place of the accident, at a speed of between thirty and thirty-five miles an hour. A truck with a panel body was parked a few feet north of