Greenwood v. Summers

DESMOND, P. J.

The appellant in this case was injured and the automobile which she was driving was damaged in a collision which occurred on Alameda Street, a north and south thoroughfare, in the southerly district of Los Angeles. She was driving north on Alameda Street at about 6:10 a. m., when the accident happened. The paved highway upon which she was driving was about 37 feet wide. There was a heavy fog prevailing at the time; it was quite dark and the pavement was moist. The defendant Summers also was driving his Terraplane Sedan north on Alameda and, immediately after passing the appellant’s car, sideswiped the defendant Misko's truck, which was traveling south on Alameda Street, knocking its dual rear wheels out from under the truck. This collision threw the truck out of control and after skidding in a southerly direction for 192 feet it collided with the plaintiff’s car.

Plaintiff, the appellant here, joined Summers and Misko as defendants. Summers answered, denying the allegations of negligence charged against him and any liability for the damage resulting from the collision. As an affirmative defense he charged that the injuries and damages were proximately caused by the negligence of the plaintiff and of defendant Misko. Defendant Misko in his answer denied negligence or liability on his part. In a cross-complaint Misko

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sought damages from Summers, Ms codefendant, in the sum of $273.62.

The case opened as a jury trial, but after the first day’s hearing the parties all stipulated that it might be completed by the trial judge sitting without a jury. After hearing the arguments of counsel at the conclusion of the hearing, the judge, by agreement of the parties, went to the scene of the accident and shortly thereafter entered findings and judgment.

According to the findings, defendant Misko was not negligent in the operation of his truck and no act on his part “proximately contributed to the accident in question or to the injury or damage suffered by any party.” The court further found that the sole proximate cause of the accident and collision was negligence on the part of defendant Summers. As a result of his findings the court concluded as a matter of law that the plaintiff was entitled to judgment against Summers in the sum of $1,500.45; further, that she was not entitled to recover anything from the defendant Misko, but that Misko was entitled to his costs of action from the plaintiff and judgment for damages in the sum of $273.62 against Summers “together with his costs of action.” Judgment followed accordingly, awarding Misko, as his costs against the appellant, the sum of $145.70, adjudging that Misko should recover from Summers “the sum of $273.62, together with his costs of action incurred herein in the sum of $-.”