Lavin v. Fereira

WARD, J.,

pro tem.

This is an appeal by defendant from a judgment of $6,500 rendered in favor of plaintiff for damages for personal injuries.

The pertinent facts may be briefly stated: Respondent was driving an automobile easterly on Twentieth Street toward the intersection of West Street in the city of Oakland. Appellant was proceeding southerly on West Street approaching the same intersection. The cars collided within the intersection area. As a consequence of the accident respondent suffered a laceration in the palm of the right hand which, it is alleged, resulted in the severance of the median nerve.

Appellant contends that respondent by his own testimony was guilty of contributory negligence and that the damages allowed by the jury were excessive.

Driving at a speed between fifteen and eighteen miles an hour at a point approximately twenty-five feet west of the intersection, respondent looked to the north but was unable to see any approaching automobile within a distance of sixty feet; and he also looked towards the south. When he had proceeded a car length within the intersection appellant’s automobile was visible forty feet to the north, and a short distance further the accident occurred. On cross-examination the testimony of plaintiff was contradictory and conflicting.

Appellant argues that the facts of this case fall squarely within the rule laid down in

Moss

v.

H. R. Boynton Co.,

44 Cal. App. 474, 476 [186 Pac. 631], and approved in

Bullock

v.

Western Wholesale Drug Co.,

91 Cal. App. 369, 372 [266 Pac. 978], wherein the court said: “It was a duty devolving upon plaintiff, as the act of an ordinarily prudent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be anticipated. This was a continuing duty and was not met by looking once and then looking away.” In the Bullock case the driver failed to look in the direction whence danger might be anticipated until he was within the intersection. This testimony was uncontradicted, and hence presented a question of law.