Barton v. Messmore

WHITE, P. J.

On December 2, 1951, at about 9:45 in the evening, Clarence O. Barton was operating his automobile in a southerly direction on Lincoln Boulevard in Santa Monica, California, accompanied by his wife, one of the plaintiffs herein, Happy May Barton. Their automobile was struck from the rear by a tractor and semitrailer operated by the defendant Orval Messmore and owned by defendant Union Truck Company. As a result of the accident Clarence O.

[815]

Barton was killed and Happy May Barton was injured. Plaintiffs, the wife and children of the decedent, Clarence 0. Barton, by their complaint, sought damages for the death of the latter, and by a second cause of action Happy May Barton sought recovery for personal injuries sustained by her. The jury returned two verdicts, one as to each cause of action, finding for the defendants as to each cause of action. Plaintiffs appeal from the judgments and from the order denying a motion for a new trial. The attempted appeal from the order denying a motion for a new trial, being unauthorized by law, must be dismissed.

Appellants contend that the evidence is insufficient to support the verdict, in that, viewing the evidence in the light most favorable to respondents, the only conclusions to be drawn are that the negligence of the truck driver was the sole proximate cause of the accident and that any negligence on the part of the deceased, Clarence 0. Barton, was not a proximate cause of the accident. This contention cannot be sustained.

The vehicle operated by Clarence 0. Barton was struck as Barton was making a right turn onto Ozone Street. The defendant truck driver testified that he first saw the Barton car four or five blocks north of Ozone Street, in what would be the second lane from the center of the street if there had been marked lanes; that he followed the car at a distance of about 30 feet; that when he was about 100 feet north of Ozone Street he looked in his rearview mirror to see if he had clearance to pass; when he looked back the car was about 15 feet from the front of his truck, moving very slowly, and appeared to be starting a right-hand turn. He “hit the brakes,” but it was “too late.”

Appellants emphasize the evidence that the truck driver was looking into his rearview mirror for, “two or three seconds” while traveling about 20 miles per hour, and did not know whether Barton gave a hand signal, and would not have seen such a signal if it had been given. It is argued that the truck driver’s own testimony shows that he was negligent in following the Barton car too closely and in failing to keep the car within his vision as it approached Ozone Street, particularly since he had observed the car slow down as if to turn at a previous intersection. With respect to the conflict in the evidence as to whether Barton gave a signal of his intention to make a turn, appellants assert that failure to