Rivera v. Hasenjaeger

CRAIL, P. J.

These are appeals from two judgments, one in favor of Teresa Rivera and one in favor of Lupe Salas, for injuries arising out of an automobile collision. The contention of the defendant is that the plaintiffs’ decedent was guilty of contributory negligence as a matter of law for the reason that he violated section 582 of the California Vehicle Code, which reads as follows: “Upon any highway out

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side of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of the highway when it is practicable to stop, park or so leave such vehicle off such part or portion of said highway.” It is our duty to view the evidence in the light most favorable to the plaintiffs, and to see if there is any substantial evidence which would take the case to the jury on the question of contributory negligence.

At 3 o’clock A. M. the plaintiffs’ decedent was driving in his car a party of friends along Firestone Boulevard in a sedan. Following the sedan Lupe Salas was riding in a roadster which also belonged to the decedent. Firestone Boulevard was a paved highway, the pavement being thirty feet in width and marked off into three travel lanes, each ten feet wide. The party was proceeding eastward. Extensive repair work was in progress on Firestone Boulevard, the work consisting in building oiled shoulders on each side of the paved highway so as to widen the road. Shoulder material, in the nature of oiled gravel, was piled in long windrows along the sides of the highway. Flares were burning along the highway to warn traffic to keep off the shoulders, and wooden cross-arms were placed at intervals along the pile of shoulder material. Where the accident occurred the material was piled some two to two and one-half feet south of the pavement. The shoulder material had been placed in a continuing pile along the south side of the pavement preparatory to being rolled to make the shoulder on the south side of the road flush with the pavement. This shoulder work was in progress from the scene of the accident clear into Buena Park and for a considerable distance back along the course which the party had followed. At the immediate scene of the accident the shoulder work had been completed on the north side of the road. The right rear tire of the sedan which the decedent was driving went flat. He immediately signaled to the roadster which was following, explained his predicament, and then drove his sedan as far off the southerly side of the paved highway as was possible without driving into the windrow. The driver of the roadster did the same thing, driving it to a position some distance in the rear of the Plymouth so as to' permit its headlights to play upon the rear of the sedan while the decedent was proceeding