Baumert v. Govaker

SHINN, P. J.

Plaintiff appeals from a judgment of non-suit in a personal injury action arising out of a collision between his motorcycle and a car driven by defendant Govaker. It was stipulated at the trial that Govaker was an employee of defendant Sears, Roebuck and Company and was acting within the scope of his employment at the time of the accident. The case was tried to a jury.

The evidence as interpreted most favorably to plaintiff

(Overton

v.

Vita-Food Corp.,

94 Cal.App.2d 367 [210 P.2d 757]), is as follows: The accident occurred at about 11 a. m. on August 12, 1953, at the intersection of Anza Avenue and West 104th Street. Anza Avenue is a main thoroughfare for north-south traffic and is protected by boulevard stop signs. At the time in question there was no posted speed limit for traffic northbound on Anza Avenue through the 104th Street intersection, though just north of 104th Street there was a sign indicating that the speed limit from that point north was 25 miles per hour. There was no center line on Anza Avenue, which was 60 feet wide with a 4-foot raised concrete barrier dividing the northbound and southbound lanes.

Plaintiff was proceeding north on Anza at about 35 or

[693]

40 miles per hour. He was riding his motorcycle in the most easterly lane. When he was 100 or 200 feet south of the 104th Street intersection a passenger car was proceeding north in the lane to his left and was about 25 or 30 feet ahead of him. As plaintiff approached the intersection, the passenger car slowed down to make a left turn onto 104th Street. Defendant was driving south on Anza, with the intention of making a left turn onto 104th Street.

Defendant’s version of the accident was testified to by the investigating officer, who had a conversation with him shortly after the collision. Defendant said that he stopped at the intersection and at that time saw the northbound passenger ear which had entered the intersection preparatory to turning left on 104th Street. The car obscured defendant’s vision of Anza Avenue to the south, but defendant proceeded to make his left turn into the intersection. As he was crossing the northbound lanes of traffic on Anza, he saw plaintiff’s motorcycle coming north at what appeared to be a pretty rapid speed. He tried to accelerate so as to clear the intersection. He saw the motorcycle bearing down on him and it appeared to swerve to the right. Defendant said he thought that if the motorcycle could have swerved to the left, the collision could have been averted. On cross-examination, ,the officer testified that defendant told him that he had made two stops, once when he entered the intersection and once in the intersection, and that he started to proceed east after seeing the northbound car making its left turn onto 104th Street.