Foshee v. Wolters

MARKS, J.

The three cases involved in this appeal were consolidated for trial and appeal, and grew out of an automobile collision which happened at about 6 o ’clock p. m. on May 17, 1946, on U. S. Highway No. 80 about 6 miles east of Holt-ville in Imperial County.

Judgment went against plaintiffs and appellants, Kenneth and Virginia Foshee. Plaintiffs and respondents William G. Cloes and Arthur F. Wollgast were given judgment against John Kenneth Foshee; William G. Cloes in the sum of $6,-

[768]

002.81, and Arthur F. Wollgast in the sum of $2,007.21. The plaintiffs and respondents Wesley J. Wolters and Iona S. Wolters were given judgment against Jack Rudy and John Kenneth Foshee in the sum of $17,196.31. The actions against ‘California & Arizona Produce Company, a corporation, and all defendants sued under fictitious names, other than Jack Rudy, were dismissed. Kenneth Foshee, John K. Foshee, and John Kenneth Foshee are names used by the same person.

An appeal was taken by plaintiffs and appellants and by all defendants and appellants, but only one brief has been filed and is on behalf of John Kenneth Foshee. The other appellants have made no appearance either by brief or oral argument. For brevity, except when otherwise necessary, we will hereafter refer to John Kenneth Foshee as the defendant, to the respondents as the plaintiffs, and to U. S. Highway No. 80 as the highway.

At the place of the accident the highway runs in a general easterly and westerly direction and is straight with an unobstructed view for about a mile. It is a concrete roadway about 20 feet wide with a white line in its center. On the southerly side is a Afoot oiled shoulder, a 5-foot gravel shoulder and a borrow pit abont 5 feet deep. On the northerly side is a 3-foot oiled shoulder, a Afoot graveled shoulder and a like borrow pit. The plaintiffs and two other persons who were riding in the car, all of whom testified at the trial, were traveling easterly on the highway in a Buick sedan owned and operated by Wesley Wolters. Defendant was driving his Plymouth sedan westerly at the same time.

The testimony of the occupants of the Wolters car may be very generally summarized as follows: That Wolters was driving his car easterly on his right hand half of the pavement at a speed of not more than 45 miles per hour; that when defendant’s car was around 200 of 300 feet from them it swerved onto the southerly half of the pavement; that as the two cars approached each other, and to avoid a head-on collision, Wolters swerved his ear northerly to his left so that part of it, at least the left wheels, were northerly of the center line; that at the same time defendant swerved his car northerly to his right and into the Wolters car causing both vehicles - to skid to the southerly side of the highway. The principal damage was on the right sides of the two cars.