Saari v. Leddy

PEEK, J.

This is an appeal by plaintiff from a judgment of nonsuit in an action for personal injuries arising out of an automobile accident. Suit was originally filed by the heirs of Leddy. Thereafter plaintiff filed an answer and cross-complaint. The original complaint was dismissed prior to trial, and the cause proceeded upon the cross-complaint. The motion for nonsuit by the heirs of Leddy was based solely upon the ground that the plaintiff was guilty of contributory negligence as a matter of law.

The facts show that plaintiff had stopped his car in order that his niece might transfer to another car which was parked across from him and headed in the opposite direction on what is known as the Old Areata Road in Eureka. After his niece had alighted from his ear and crossed the highway, plaintiff had proceeded north only a matter of a few feet when he observed Leddy’s ear approximately 200 yards away and headed toward him. He estimated Leddy’s speed at that time as being from 80 to 90 miles per hour. There was other testimony of eyewitnesses who estimated the speed to be from 70 to 90 miles an hour. One expert witness, Captain Bailey of the California Highway Patrol, in answer to hypothetical questions, estimated the speed to have been 74.2 miles per hour. Leddy’s car was described as “weaving back and forth . . . bouncing back and forth ... on either side of the highway, ’ ’ or as Mrs. Ritola, the driver of the ear into which plaintiff’s niece had transferred and who witnessed the accident, testified, “fish-tailing or weaving and it was obviously out of

[801]

control.” When Leddy’s car was approximately 150 feet distant, plaintiff started a left turn. He estimated that the point of impact was somewhat over the white line; however, an investigating officer estimated the point as being three feet. The Leddy car skidded some 48 feet before its left front end collided with the left front of the plaintiff’s car. There was testimony that there were approximately four feet of skid marks left by plaintiff’s car, although plaintiff denied any recollection of having applied his brakes prior to the accident. The Leddy car, after striking and pushing plaintiff’s vehicle approximately 63 feet, continued for some 50 feet and came to rest in a ditch. Leddy apparently was killed instantly. An autopsy performed on his body showed a blood alcohol level of 1.5 milligrams per cubic centimeter of blood, indicating that he was in fact intoxicated or at least on the borderline of intoxication. At the point where the collision occurred the Old Areata Eoad was a two-lane highway, having a narrow shoulder of approximately one foot on plaintiff’s right, some brush, and dropping off into a drainage ditch running parallel thereto. To plaintiff’s left, that is across the highway, was a driveway. His testimony was that after seeing the Leddy car approaching he realized there was no escape to the right and sought to get across the highway and to the driveway on his left.