Hodges v. Gonzales

MARKS, J.

On September 4, 1931, plaintiff and his wife were traveling west in their automobile on Orangethorpe Avenue in Orange County. Shortly after 5 o’clock in the afternoon the engine stopped and the car coasted to a stop with its left wheels just on the north edge of a twenty-foot pavement, which pavement was in the center of the highway. Its right wheels were near the south edge of a ditch on the north side of the pavement.

Plaintiff was an automobile mechanic. He alighted from the stalled car, walked to its side, raised the hood and hunted for the trouble. He found that the distributor gears had been stripped which caused the engine to stop and prevented its being started again. While he was standing on the left side of the car looking at the engine a truck owned by J. J. Gonzales and being driven by E. Artiaga, his employee, and who was acting within the scope of his employment and on his master’s business, approached the stalled automobile from the east. Artiaga drove so close to the automobile that the truck struck its left rear fender and plaintiff was thrown to the pavement and seriously injured. He suffered a basal fracture of the skull, a fracture of the right fibula and compound contusions over his head and body. He was confined in a hopsital for eleven days when he was removed to his home where he was confined to his bed until November 30, 1931. At the time of the trial on July 12, 1932, he was still suffering from pains in his head.

The case was tried by the court without a jury and judgment was rendered in plaintiff’s favor in the sum of $1717. Defendants have appealed from the judgment.

Defendants urge the following grounds for a reversal of the judgment: (1) That plaintiff was guilty of contributory negligence in parking his car partly on and partly off the paved portion of the street in violation of the provisions of subdivision “A” of section 136 of the California Vehicle Act. (2) That the plaintiff was guilty of contributory negligence as a matter of law in standing on the paved portion of the street in the path of a plainly visible approaching

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motor vehicle. (3) That the trial court failed to find on the defense of contributory negligence. (4) That as the trial court did not find the amount of damages to which plaintiff was entitled for his personal injuries it was error to award him any damages for such injuries.