Henderson v. Braden

TUTTLE, J. —

This is a wrongful death action arising out of an automobile accident which occurred on September 14, 1936, in San Joaquin County, California. On this day one S. T. Henderson, decedent, seventy-four years of age, and husband of plaintiff herein, was driving an Oldsmobile sedan automobile in a northerly direction on the Lower Sacramento road at a point where the same intersects with a crossroad known as Armstrong lane. Defendant and appellant Eugene Braden was driving and operating a truck in a general easterly direction along Armstrong lane, at the time and place of the happening of the accident, and was driving as the employee of defendant and appellant Neil C. Locke. Both drivers were the sole occupants of their respective vehicles.

The trial was had before a jury, which rendered a verdict in favor of defendant. Plaintiff made a motion for a new trial, and the motion was granted in general terms. Under such circumstances, it will be presumed that the order was not based upon the insufficiency of the evidence. (Code Civ. Proc., sec. 657.) The appeal is taken from said order.

It is contended by appellants that the trial court erred in granting the motion for new trial, for the reason that the evidence shows that the deceased was guilty of cpntributory negligence as a matter of law. The collision occurred at 10 o ’clock in the morning on a clear day. The intersection was a right angle one. There is no curve on either road for a distance of a half mile or more from the intersection. There is nothing to obstruct the view of the intersection, and the Armstrong lane approaching the intersection is visible for a long distance, in respect to one approaching the intersection on the Lower Sacramento road from either the north or the south. Defendant Braden, called as an adverse witness by plaintiff, testified that he came to a stop when he reached the intersection ; that he started up and entered the intersection, and had proceeded to a point where the front wheels of his truck were on the white line making the center of the Lower Sacramento road; that he then saw the deceased approaching, and practically stopped his car; that the deceased was travel

[90]

ing at the rate of fifty-five of sixty miles per hour; that the ear of deceased was struck by the front of his truck, damaging the bumper and front fender slightly, that the Oldsmobile skidded for some twenty-five feet, and then turned over twice. Witness Davis,