Elmore v. County of Lassen

STURTEVANT, J.

Miss Elmore, with three others, was driving north on Morse Avenue and C. C. Jeskey, with J. B. Leavitt the sheriff of Lassen County, was driving east on Bayshore Highway and their automobiles collided at the intersection of the two roads which is located a short distance north of San Jose. Miss Elmore and two of the passengers riding with her commenced separate actions. All three actions were tried together. The jury returned verdicts in favor of the plaintiffs and from the judgments entered thereon the defendants have appealed.

In their complaints the plaintiffs alleged negligence in general terms. On the trial the negligence claimed as against the defendants was excessive speed. The defendants denied the charge of general negligence and pleaded contributory negligence. On the trial they introduced evidence to the effect that when their car approached the intersection, and before the driver saw the plaintiffs, the defendants’ car was proceeding not to exceed 43 miles an hour. It was contended by the defendants that when they first saw the plaintiffs’ car defendants were 95 feet west from the middle line of Morse

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Avenue and that plaintiffs’ car was 40 feet south of the center line of Bayshore Highway going 20 to 25 miles per hour. At first defendants attempted to pass to their left and in front of the plaintiffs’ car thinking the driver would give way, but on seeing she was not going to do so defendants’ car then swerved back, the driver put on his brakes, and entered the intersection traveling eight miles per hour, but his left front wheel hit the left rear wheel of plaintiffs’ car and after the impact came to a standstill within 12 or 18 inches. The plaintiffs’ car continued forward, described a half circle to the right, and turned over completely. There was evidence of skid marks on the highway but defendants throughout contended their car did not make the marks and could not have made them. Therefore there was evidence in the record which would have justified the jury in finding that the defendants had the right of way (sec. 131, subd. [c]); that the plaintiff Miss Elmore was guilty of contributory negligence in failing to allow the defendants to pass in front of her; and that there was no evidence showing a set of circumstances that would render the speed of the defendants at the time and place of the accident unlawful.