Parker v. Auschwitz

California Court of Appeal Jun 20, 1935 No. Civ. 5212Published

Before: Pullen

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Holding. The court affirmed the judgment against the defendant, finding sufficient evidence to support the trial court's determination that the defendant was negligent and the plaintiff was not, as the defendant failed to justify his vehicle's position on the wrong side of the road and the plaintiff acted reasonably in an emergency.

Issues

Whether the evidence supported the trial court's finding of defendant's negligence and proximate cause.
Whether the plaintiff was contributorily negligent as a matter of law in her attempt to avoid the collision.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court found that the defendant was negligent, that the plaintiff was not negligent, and that defendant’s negligence was the proximate cause of the injuries.”

“Plaintiff had a right to follow either or any of the courses open to her in an endeavor to avoid the collision and she cannot be held negligent because she chose the course she did, even admitting it was wrong.”

PULLEN, P. J.

This is an appeal from a judgment against defendant in five cases consolidated in one action for the purpose of trial. All of the actions involve the same automobile collision, four of them being for personal injuries suffered by the minor children of L. G. Parker, their guardian

ad litem,

and one action by L. G. Parker for medical and hospital services furnished for the minors.

The collision out of which these actions arose occurred about 9:30 o ’clock on the morning of a November day near the foot of “Rocky Grade” in Lake County. This grade was approximately 350 feet long, descending from the south toward the north and ranging in degrees of incline from 5 to 12 per cent. The roadway was improved with an oiled surface from 35' to 18 feet in width with graveled shoulders on each side, the entire width of the road not exceeding 25 feet. Throughout the entire course of the grade the road was flanked on both sides by rocks and debris and on the westerly side by trees and brush.

Appellant Auschwitz was proceeding northerly in a model AA Ford truck, geared with three speeds forward, and reverse and with dual rear wheels. The truck was loaded with about one-third of a normal load of lumber, which extended beyond the bed of the truck, making a total over-all length of truck and lumber approximately 23 feet.

When appellant reached the top of the grade he stopped his truck and shifted from high gear to the next lower gear. He did not disengage the clutch nor shut off the motor of his truck nor apply his brakes. After he had proceeded 30 to 50 feet down the grade the rear end of the truck slipped to the left, throwing the car out of control and it then slid or skidded sidewise toward the left or western side of the road and forward a distance of approximately 250 feet, blocking the entire traversable portion of the road to the point of collision hereinafter mentioned. About the time appellant reached the crest of the hill Louise Parker, referred to herein as plaintiff, then about sixteen years of age, was driving a Pontiac sedan southerly along the highway and approaching the foot of the grade. At about that point plaintiff first

[695]

Parker v. Auschwitz

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PULLEN, P. J.

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