Thompson v. Steveson

MARKS, J.

This is an appeal from a judgment for damages suffered by plaintiffs in a motor vehicle collision at about 6:30 o’clock p. m., on May 26, 1939, on Highway 101, between Del Mar and Solano Beach in San Diego County.

It was stipulated at the trial that at and south of the point of collision there was a three-lane paved highway with an oiled shoulder about 8 feet wide on the east side and another about 20 or 30 feet wide on the west side of the pavement. At the opening of the trial the following stipulation was entered into as to the speed of plaintiffs’ car and the speed of another car immediately preceding it which was following the car driven by defendant: “The Court: Any question of excessive speed? Mr. Coker: No, your Honor, I think both cars, that is plaintiffs’ car and the car immediately ahead of it were proceeding at a normal speed, perhaps forty to forty-five miles an hour.”

While a number of the facts are admitted the evidence is sharply conflicting on other material points. Following the time-honored rule that conflicts in the evidence are settled in the trial court we will summarize the evidence tending to support the judgment and will disregard other evidence conflicting with it.

The place of the collision was “outside of a business or residence district.” (§ 582, Veh. Code.) Defendant was driving north in the east traffic lane. She had her two children with her. Shortly before the collision the little boy sitting on the rear seat complained of being cold. Defendant told him to put on his sweater, but he could not find it. She brought her car to a gradual stop in order to assist the child. She did not drive off the pavement though perhaps the right wheels of her car were resting slightly off the pavement and on the oiled shoulder.

A car driven by Bernard Lemohn was following defendant’s

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car and was traveling in the east traffic lane. Plaintiffs’ car, driven by Lonis K. Thompson, with Edythe I. Thompson sitting on the front seat to his right, was following the Lemohn automobile and was also traveling in the east traffic lane.

Mr. Thompson clearly described the accident as follows: