Garcia v. Conrad

NOURSE, P. J.

The plaintiffs have appealed from the judgments and verdict adverse to them in two consolidated actions for damages. They are the two widows and the surviving children of two men who were killed when struck by a motor vehicle operated by the defendant Conrad.

The collision occurred at about 2:45 A. M. on the Bayshore Highway where it passes through the city of South San Francisco. At that point the highway is one hundred feet wide consisting of four paved traffic lanes each ten feet wide, and two macadamized shoulders, each thirty feet in width and connecting with the sidewalk curbing on each side of the highway.

There was no eyewitness to the collision who could tell just how and where it occurred. From the testimony of those called, and from all the inferences and presumptions which the defendants summon in support of the verdict, the facts and circumstances surrounding the collision are: defendants Conrad and Dyer were using the automobile belonging to defendant Alexander with the special permission of the owner; they had been in San Francisco for dinner and had several drinks of liquor; Dyer was asleep as they approached the city of South San Francisco, and Conrad was driving; the night was dark; it had been raining, and the pavement was wet and dark; the deceased had taken their wives to a picture show, left them at one of the homes while the two men went to town for drinks. (Both sides emphasize the drinking incidents of the others and seek to minimize that of their own. The reasonable conclusion from all the testimony is that the two defendants had done their drinking early in the evening, that they were sober at the time of the collision, and that the police officers who arrived soon after the accident found no evidence of intoxication upon them. On the other hand, the deceased apparently started their drinking about the time the defendants stopped theirs. The evidence disclosed that, as they left a tavern, one was intoxicated and that the attending physician found a strong odor of alcohol upon the deceased as he was attending them in the hospital. A reasonable deduction from all the evidence upon this subject is that the defendants had sobered before the accident,

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that the deceased were intoxicated at the time, and that this condition of the deceased was a material factor in the causes of the accident.)