Wheeler v. Buerkle

MARKS, J.

This is an appeal from a judgment rendered in favor of Jack Wheeler against William Buerkle. We will refer to William Buerkle as the defendant. Plaintiff was awarded damages for injuries suffered in a collision between an automobile owned and driven by defendant, and another owned by Augusta T. Rambaud and driven by Lillian Nikkei with the knowledge and consent of the owner.

The collision occurred in the intersection of Tulare and Nineteenth Streets in the city of Bakersfield. Nineteenth Street runs east and west and Tulare Street north and south. The accident happened on May 12, 1934. The day was clear, the streets were dry, and there were no other vehicles near the intersection.

At the time of the accident defendant was bringing four men to his ranch in the expectation of giving them employment. He was driving a small coupe. Two of the men were riding in the seat beside him, Fred McCall was riding on the left front fender, and plaintiff was riding on the right front fender with his right arm around a spare tire and his left arm around the right front headlight.

The record is free from serious conflicts in the evidence which would affect the material rights of the parties.

Defendant was driving east and Miss Nikkei west on Nineteenth Street, both approaching the intersection of that street with Tulare. Both were on their own right-hand sides of

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the road. Defendant’s speed was variously estimated at between fifteen and forty-five miles an hour, and Miss Nikkei’s at between twenty and thirty-five miles an hour. There is no evidence that the intersection was obstructed, as such an intersection is defined in section 113 of the California Vehicle Act in effect at the time of the accident, or that it was within either a business or a residential district, as defined by section 28½ of the same act, or that it was sign-posted as required by sections 115 and 116 of that act. It is therefore conclusively presumed to be outside a business or residential district (subd. c, sec. 28½, Cal. Vehicle Act) where the permissive speed limit was forty-five .miles an hour. (Sec. 113, Cal. Vehicle Act.)

When Miss Nikkei was between ten and thirty feet east of the east line of the intersection, and defendant was between ten and thirty feet from its west line, Miss Nikkei attempted to make a “U” turn which brought her car across the path of defendant’s car. She started to turn when her car was near the north curb line of Nineteenth Street, did not pass around but over the center of the intersection, and before starting the turn did not see ■ that it could be made safely. She violated three rules of the road established by sections 129 and 130 of the California Vehicle Act. The evidence is conflicting on whether she gave a proper arm signal on turning. If she failed to do so this would add a fourth violation of the rules of the road to her manner of driving. In any event she was guilty of negligence