Bushey v. Union Oil Co.

TUTTLE, J.,

pro

tem.

Plaintiff recovered judgment for $6,500 on account of personal injuries received in an automobile collision, and defendants appeal from said judgment.

The appeal is based entirely upon the insufficiency of the evidence to support the findings made by the trial court, the ease being tried without a jury.

It is first contended that the evidence is insufficient to support the finding that the negligence of defendant was the proximate cause of the injury. The collision occurred within the intersection of Lincoln Avenue and Trancas Road, on the outskirts of the city of Napa, at the hour of 9:30 A. M. Plaintiff was driving a coupe on Trancas Road, which coupe was equipped with a governor which limited her speed to thirty-five miles per hour. The brakes on her car were in good order. She did not know of the existence of the intersection. Due to the obstructions of her view, she did not see the truck driven by defendant Brown until she was one hundred sixty feet from the intersection. She then applied her brakes and her car slowed down. Prior to that time, her speed was about twenty-eight miles per hour. In her attempt to apply her brakes she found that they did not work properly, as they held her in the center of the highway. She released the brakes, and then attempted to apply them a second time, and they still had the effect of holding her in the center of the highway. During this period the truck, which

[352]

belonged to defendant company, entered the intersection from Lincoln Avenue to the right of plaintiff. The latter testified that the truck was on the

left

side of the avenue when it entered the intersection, and that while still in the intersection it turned to the right and the collision occurred.

Plaintiff also testified that the truck “cut the corner” when it entered the intersection. This was a violation of section 540, subdivision (b), of the California Vehicle Act, as the driver testified that he was attempting to make a left turn when he entered the intersection. That such act constituted negligence and was the proximate cause of the collision, there can be no doubt. Prom the map in evidence, the course of the truck within the intersection is similar to the letter “S”. Entering the intersection on the left side of Lincoln Avenue, it swerved to the right and then went slightly to the left, turning over and landing on its side just as it was passing out of the intersection. The truck weighed some fifteen thousand pounds. It was struck by the car of plaintiff at the rear end, and while it was in the middle of the highway. Most of the foregoing facts are taken from the testimony of plaintiff. It is urged by appellant that the effect of this testimony was destroyed by the cross-examination of plaintiff. Where there is a conflict in the testimony of a witness, we are bound by a finding of the trial court in respect to such testimony, in the same manner as this court is bound by a finding based upon the conflicting testimony of the witnesses of opposing parties.