Zwerin v. Riverside Cement Co.

SHAW, J. pro tem.

This action was brought by the plaintiffs to recover damages for personal injuries received by them in a collision between a De Soto automobile owned and driven by the plaintiff Kenneth Zwerin and a truck owned by the defendant corporation and driven by defendant Maxie. The complaint was based on negligence of Maxie, alleged to be the employee of the corporation. The plaintiff Kenneth Zwerin sought also a recovery for damage to his automobile. The defendants denied all the allegations of the complaint, and pleaded contributory negligence of plaintiff Kenneth Zwerin, alleging also that he was acting as the agent of plaintiff Doris Zwerin. The jury returned a verdict in favor of defendants, on which judgment was entered, and plaintiffs appeal from this judgment.

The appellants concede that the trial court made no errors in ruling on evidence or instructing the jury, their only point being that the evidence is insufficient to support the verdict. They contend that the evidence establishes, as a matter of law, that the defendant Maxie was negligent and that the plaintiff Kenneth Zwerin was not negligent. The plaintiff Doris Zwerin is the mother, and on the occasion in -question was the guest, of the plaintiff Kenneth Zwerin, and no ground appears on which his negligence, if any, can be imputed to her. The defendant Maxie, it was stipulated, was acting as employee of defendant corporation and driving its truck at the time of the accident. If the evidence is sufficient to support the jury’s implied finding that Maxie was not guilty of any negligence which was a proximate cause of the accident the judgment must be affirmed as to both plaintiffs; otherwise it must be reversed as to plaintiff Doris Zwerin at least. We therefore address ourselves first to the question of Maxie’s negligence. In passing upon it we follow the established rule on appeal, considering only the evidence which favors the verdict, resolving all conflicts in the evidence against the appellants, and where conflicting inferences can reasonably be drawn, even from undisputed facts, accepting those which tend to support the verdict. On such a view of the evidence the following facts appear:

[717]

The collision happened at about 3 p. m. on a rainy day, October 25, 1940. Both the vehicles involved had windshield wipers in operation, and it does not appear that the rain interfered with the vision of either driver. The scene of the collision was the intersection of Lankershim Boulevard and San Fernando Road. San Fernando Road here runs approximately northwest and southeast and Lankershim Boulevard, running approximately north and south, intersects it from the south but does not continue to the north. San Fernando Road was at the time of the collision a regularly established through highway and a stop sign such as is prescribed by law was located on Lankershim Boulevard about forty feet back of the curb line of San Fernando Road. Plaintiff Kenneth Zwerin was driving his De Soto car northerly on Lankershim Boulevard, intending to turn northwesterly on San Fernando Road, and as he approached San Fernando Road he slowed down but did not come to a complete standstill at the edge of San Fernando Road. He kept on coming very slowly, at a speed of about four or five miles per hour. Defendant Maxie was driving southeasterly on San Fernando Road, with an empty cement truck to which was attached an empty trailer, both together weighing about 25,000 pounds and having a combined length of forty-five or fifty feet. Both had air brakes. Maxie was driving about thirty-five miles per hour as he approached Lankershim Boulevard, and at a distance of about 200 feet from it he saw the De Soto approaching on Lankershim Boulevard and applied his brakes and kept them applied a little, slowing down to about thirty miles per hour. As the De Soto approached, San Fernando Road was clear of north-bound traffic for several hundred feet to the southeast, so that the car could have crossed San Fernando and turned northwesterly without interference from traffic coming from the southeast. Maxie testified to the events leading to the collision in these words: “A. Well, I was coming down San Fernando Road towards Los Angeles, home, and I seen this car approaching up Lankershim Boulevard, and he was coming very slow, and I swung towards the middle lane to clear him, and he kept coming out and I got pretty close to him, and I thought he was going to go; and so I started to swing behind him, to clear him behind, and he stopped dead still, and I hit him. Q. At the time he brought his car to a stop, where was he with reference to the path of travel of your truck ? A. Right