Donahue v. Mazzoli

STURTEVANT, J.

In an action to recover damages for injuries sustained in an automobile collision the trial court, made findings in favor of the plaintiff and from the judgment entered thereon the defendants appealed. The defendant Ferrari was the owner and the defendant Mazzoli was the driver of a truck with which the plaintiff’s car collided. They contend that the defendant Mazzoli was not negligent and that the plaintiff was, as a matter of law, guilty of contributory negligence.

The accident happened near the corner of Norton and Mission Streets in San Francisco at about 4:30 P. M. on August 26, 1936. It was clear and the streets were dry. Both parties had entered Mission Street some distance to the north, and both were traveling toward the south. On Mission Street there are two car lines, on one the cars run to the south and on the other they run to the north. The defendant Mazzoli, driving a Dodge truck, was in the lead and was traversing the westerly tracks going south. The plaintiff was behind him going in the same direction in the same path, driving a Plymouth sedan. Both were proceeding at a speed of 18 or 20 miles per hour. As they crossed Norton they slowed down to about 14 miles per hour. Having crossed the intersection each increased his speed to about 18 or 20

[104]

miles and continued to the south. The plaintiff’s car had been following the defendants’ truck and, immediately before the time of the impact was following it at a distance of 15 or 16 feet—about the length of his car. On the right hand side of Mission Street cars were parked, others were being parked, and still others were starting up and moving. Having passed Norton Street a short distance the defendant turned slightly to the right and stopped. The Dodge truck was equipped with a signal lamp of a type approved by the Department of Motor Vehicles of the state of California and the signal lamp was in good working order and was working at the time of the accident. As the truck stopped the plaintiff’s car continued forward and struck the rear end of the truck, causing the injuries for which the plaintiff seeks to recover damages. The plaintiff testified that before turning and stopping the defendant gave no signal with his arm. The defendant testified he did. But he makes the further claim that his lamps gave the signal and that he was not bound to give both a signal by hand and a signal by a mechanical device. The defendants cite and rely on two sections of the code. Subdivision (c) of section 544 of the Vehicle Code is as follows: “544. When Signal Required. . . . (c) No person shall stop or suddenly decrease the speed of a vehicle on a highway without first giving an appropriate signal in the manner provided in this chapter to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.” And section 545 is: “545. Signals by Hand and Arm or Signal Device. The signals herein required shall be given either by means of the hand and arm or by a signal lamp or mechanical signal device of a type approved by the department, ...” The finding thereon is as follows: “ . . . that said Dodge truck was equipped with a signal lamp of a type approved by the Department of Motor Vehicles of the State of California; that said signal lamp was in good working order and was working at the time of the accident; that said signal lamp could be seen at a distance of more than two hundred feet at the time of the accident, that no other' signal of intention to stop was given by the defendant Santos Mazzoli.” The contention of the defendants, that the truck was not negligently operated if the facts recited in the foregoing finding existed, is too broad. The plaintiff pleaded general negli