Kindscher v. Dyer

GRIFFIN, J.

This action is one for damages arising out of a collision between a truck and a semi-truck and trailer on Highway 99, about 11 miles north of Bakersfield on April 6, 1944, between 6 and 7 a. m. Plaintiff was driving in a southerly direction in a “bobtail” truck owned by him, loaded with bee hives. The straightaway highway was of two lanes, 32 feet wide, with 4% to 5 foot shoulders on each side and had a white center line painted thereon. Defendant Willis Moye was driving an unloaded flat-rack semi-truck and trailer, 45 feet over all in length with an eight-foot bed, belonging to the defendants E. 0. Dyer and H. E. Dyer, in a northerly direction immediately behind another semi-truck and tanker trailer, driven by one Treadwell, traveling in the same direction. As plaintiff’s truck approached the Treadwell truck and trailer, defendant Willis Moye turned out from behind Treadwell’s truck with his truck and trailer, for the purpose of passing it, and in so doing, crossed over the center white line. Before defendants’ truck and trailer had regained its right side of the highway, the trailer of his outfit hit plaintiff’s truck. The bed of defendants’ trailer passed over the bed of plaintiff’s truck, cutting the ropes that held the bee hives, and thereby spilled the bee hives over a large portion of the highway.

Plaintiff’s claim-is for loss of bee hives and their contents. The complaint alleged negligence on the part of Moye, and the answer set up the defense of -contributory negligence on the part of plaintiff. Upon a trial, by the court, a jury having been waived, it found Moye not negligent, and in addition found that plaintiff was guilty of contributory negligence and gave judgment for the defendant.

On this appeal plaintiff argues (1) that Moye was negligent, as a matter of law, and that his negligence was the proximate cause of the accident, notwithstanding the finding of the court; (2) that plaintiff was not guilty of contributory negligence, even though the court so found.

Plaintiff Kindscher testified that he was a beekeeper residing in Redlands; that he left with 116 hives of bees on his truck from Colusa County about 5 p. m. on April 5, 1944; that he stopped for meals and rest periods en route; that as

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he was proceeding southerly on the highway indicated, his truck lights were not burning because it was light and the sun was shining; that no lights were burning on the approaching trucks; that 200 or 300 feet north of the place of collision he was traveling on his own side of the road at 35 miles per hour; that he noticed the Treadwell truck and trailer traveling about 35 miles per hour and that defendants’ truck was traveling about 40 miles per hour quite closely behind it; that the first time he saw defendants’ truck was when the defendant driver pulled out to go around the Treadwell truck; that he, plaintiff, was then about 200 feet from it and that he immediately swerved over to his right and onto the westerly shoulder, and that a tree, 8 feet from the westerly shoulder, was struck by the bed of his truck; that he used his brakes and slowed down to 20 or 25 miles per hour; and that he stopped about 250 feet down the highway so as to have his truck out of the way; that defendant driver pulled out onto the westerly portion of the highway, across the white line, and then tried to “duck back” onto the easterly one-half of it, but could not do so on account of the Treadwell truck; that his truck and defendants’ trailer sideswiped each other; that defendants’ trailer cut the ropes holding the hives on his truck and 97 of them were spilled along the highway.