Tracy v. Guibbini

TYLER, P. J.

Action for personal injuries resulting from an automobile accident. The case was tried by the court sitting without a jury and judgment was entered for plaintiff in the sum of $11,644. The appeal is taken from the judgment.

The accident out of which the action arose occurred on November 11, 1933, at about midnight on a state highway in the open country about four miles north of Modesto. Plaintiff was riding as a passenger in an automobile owned by defendant and appellant Guibbini. The machine was a Chevrolet and was being operated by one James L. Kennedy, a business associate of defendant Guibbini. Kennedy died as the result of injuries received in the accident. There were no other persons in the machine except plaintiff and Kennedy, appellant not being present. Tracy, the plaintiff, claims he was asleep when the accident occurred and knew nothing concerning its

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cause. Appellant’s machine was "being driven along the highway in a southerly direction. There was a head-on' collision with a Studebaker coupe, which was traveling in an opposite or northerly direction. The driver of this car disappeared after the accident and was not a witness at the trial. The complaint charged negligence on the part of Kennedy, the driver of the Chevrolet ear, in running his machine so as to collide with the Studebaker. There was no direct testimony dealing with the actual manner of the happening of the accident, the plaintiff being asleep, the driver of appellant’s car being killed, and the driver of the Studebaker having disappeared and not having been located at the time of the trial. No other persons were present. Certain witnesses who arrived upon the scene of the accident immediately after it occurred and who were witnesses at the trial testified as to the position of both cars on the pavement after the impact. It appeared also that two other cars collided with either or both of the damaged cars after they had been moved and placed upon their four wheels. The right front of each of the cars involved was damaged. Other physical facts show that at the probable point of impact there were gouges or scratches in the center of the paved portion of the highway on either side of the white line marking the center thereof. The highway at the place of the accident was some twenty-six feet in width, with a shoulder on each side of eight feet. The testimony as to the positions of the cars after the impact was conflicting, but there was evidence to show that the cars came to rest on the east side of the highway, or on appellant’s wrong side of the road, and that travel was diverted to the west side of the highway. Under these circumstances the trial court found that plaintiff had sustained damages in the amount heretofore stated through the negligence of appellant, and the findings negatived the existence of contributory negligence upon the part of plaintiff.