Bright v. Zabler

MOORE, P. J.

This is an appeal from a judgment in favor of plaintiff for $2,100 for personal injuries received when he was struck by an automobile driven by defendant, Fred W. Zabler. The judgment went against Alvina Zabler also because she was the owner of the automobile operated by her husband with her permission.

The collision of defendant’s car with plaintiff occurred at - 4 o’clock in the afternoon of July 27, 1939. At the time plaintiff was standing on the shoulder, just off the traveled portion of the state highway No. 101, at a point near Carpentaria in Santa Barbara County. He was engaged in conversation with one Willibrandt, the driver of a truck which was parked on the shoulder of the northerly side of the highway but off the traveled concrete portion thereof. Mr. Zabler was driving his car in excess of thirty-five miles per hour westerly on the concrete portion and within an area zoned for speed not to exceed twenty-five miles per hour. For some dis

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tance both east and west of the point where plaintiff stood the highway has three concrete lanes, each ten feet in width. Commencing at a line adjacent to the north lane, the asphalt shoulder extends out from the concrete seven or eight feet.

During his conversation with Willibrandt, plaintiff stood on the asphalt about one foot north of the pavement with his back to the highway. About 350 feet east of the same spot was a bridge. After crossing the bridge, defendant observed the truck parked on the asphalt. When he arrived at about seventy-five feet east of the parked truck, he saw plaintiff standing on the shoulder at the side of and facing the parked truck. After seeing plaintiff Zabler had ample room to pass him and there was then nothing to prevent his driving upon any portion of the three lanes of pavement. However, defendant continued in his general westerly course in the north lane, and without giving any warning or without applying his brakes, veered sufficiently to strike plaintiff. At no time after defendant first observed plaintiff did the latter change his position until the Zabler car struck him. Neither the driver nor the injured man witnessed the impact but the evidence leaves no doubt and the court found that the Zabler car struck plaintiff causing him severe physical injuries, to wit, fractures of the right shoulder joint and of the spine of the scapula and injuries to the head and abdomen.