Gibson v. Stuck

VALLÉE, J.

Appeal by defendant from an order granting plaintiff’s motion for a new trial in an action for damages for personal injuries and injury to property allegedly caused by the negligence of defendant in the operation of his automobile. Defendant denied negligence and alleged contributory negligence on the part of plaintiff. No evidence was introduced on the issue of contributory negligence and the question was not submitted to the jury. Verdict and judgment were for defendant.

The court granted the motion on the grounds: 1. Insufficiency of the evidence to justify the verdict. 2. The verdict was against law.

The accident occurred on November 16, 1951, between 5:30 and 6 p. m., on United States Highway 101, on an incline of a hill approximately 1 mile north of the town of Arroyo Grande in San Luis Obispo County. The highway runs generally north and south. North of the point where the accident took place, there is a gradual curve; and for a quarter of a mile north of the curve, the road is straight. Visibility from the curve to the point where the accident occurred, looking south, was about 300 feet.

Earlier in the evening an automobile had overturned south of the curve, but it was not a barrier to traffic; it was lying nearly 9 feet to the west of the west edge of the pavement. A highway patrol officer had placed two warning flares north of the scene of the accident.

Plaintiff was driving south on the highway, traveling approximately 55 miles an hour. When he reached a point on the straight stretch of the highway north of the curve about two-fifths of a mile from the scene of the accident, he saw a flare and observed numerous vehicles parked on the side of the road, the headlights of parked cars, and silhouettes of people darting about. As he started around the long

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curve, he noticed the overturned car and saw the officer directing traffic. When he was about 100 or 150 feet from the officer who was standing at the edge of the highway a little north of the overturned vehicle, he gave a hand signal to slow down, although he had looked in the rear vision mirror and had seen no automobile behind him at the time. He gradually decreased his speed until he was going about 10 or 15 miles an hour. Traveling at this rate, he passed the officer and the overturned automobile. After he passed the car, he saw in his rear vision mirror headlights overtaking him; he accelerated his speed until he was traveling about 30 miles an hour, but at a point about 30 feet past the overturned car defendant’s automobile struck the rear of his car. At the time of the impact, a portion of plaintiff’s automobile was off the highway on the shoulder to his right. Defendant told a highway patrolman that he estimated his speed to have been about 60 miles an hour.