Olson v. Union Oil Co.

STURTEVANT, J.

In an action to recover damages for injuries sustained in an automobile accident the jury returned a verdict in favor of the defendants. From the judgment entered on that verdict the plaintiff appealed.

In her brief she presents one point: The trial court gave an erroneous instruction. The effect of giving that instruction involves a consideration of the following facts:

At about 5 P. M. on February 23, 1935, George Messer was driving his car, a Maxwell sedan, east on the south side of Grove Street in San Francisco. The plaintiff was riding as his guest and was seated on his right in the front seat. Albert Young was also a passenger. He was seated in the rear seat. At the same time G. J. Eisenzopf was driving a

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truck, owned by the Union Oil Company on the west side of Polk Street in a southerly direction. The plaintiff contended that at a low speed of 15 miles per hour the Maxwell approached the intersection of the two streets, entered it, and on reaching about the middle of Polk Street the defendants drove the truck at a high speed of 25 to 30 miles per hour down from the north into and across the intersection, struck the Maxwell car, and injured her. The defendants contended that at no time was the truck driven at, and by reason of a governor attached it could not be driven at, a speed in excess of 18 to 20 miles per hour; that it entered the intersection at a speed not to exceed 15 miles per hour; reduced to a speed of not more than 10 miles per hour; proceeded across the middle line of Grove Street; and was about to' leave the intersection when the Maxwell car approached from the west at a speed twice as fast as the truck was traveling, swerved to the right in an attempt to cross in front of the truck, but, in so attempting to pass in front of the truck it was hit by the latter. The Maxwell was hit by the right front bumper of the truck on its left rear door. The Maxwell swerved in a circle, its right rear wheel was torn off, and it came to a stop about five feet in front of the truck. The latter stopped almost in its tracks after the collision. At the time of the impact the Maxwell ear had crossed the west line of Polk Street and had entered it a very few feet and was about on the south curb line of Grove Street if that line is projected across Polk Street. The plaintiff and Mr. Young testified as eye-witnesses for the plaintiff. Mr. Young testified that the truck traveled 30 miles per hour on approaching the intersection and so proceeded without slowing down. But the plaintiff did not controvert the sworn evidence that the truck was equipped with a governor in good working order and that the truck could not travel faster than 18 or 20 miles per hour. Moreover, Eisenzopf, its driver, and two bystanders, Edwards and O’Dowd, who saw the accident, all testified that the truck was traveling at about 15 miles per hour, and that the Maxwell car was traveling twice as fast.