Breaux v. Soares

TYLER, P. J.

Action for alleged wrongful death claimed by plaintiffs to have been caused by the negligence of defendant in the operation of his automobile. The amended complaint charged that the defendant so operated his ear as to cause it to collide with another automobile, propelling the latter against decedent and causing his death. The action was brought by the widow of decedent in her own behalf

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and also on behalf of her two minor children. In addition to the denials of negligence the answer pleaded contributory negligence upon the part of decedent. The case was tried by a jury which rendered a verdict in favor of defendant. Judgment upon the same was entered and this is an appeal taken therefrom. The errors assigned deal exclusively with the giving and refusal to give certain instructions to the jury. The facts giving rise to the controversy may be briefly stated as follows:

At 9 o’clock in the evening of December 13, 1934, one Magnus Jensen was driving a Chrysler automobile on the Salinas-Monterey highway in a westerly direction toward the city of Monterey. The weather was wet and the highway muddy. When at a point two miles east of Monterey the ear skidded and went off into a ditch and turned over. Jensen, the driver, went into Monterey and employed the decedent to extricate the car from its position. They repaired to the scene of the accident in a tow car owned by deceased. The Chrysler was righted by the use of a winch on the tow car and pulled from the ditch. The two right wheels were damaged. The tow car dragged the overturned car to a point on the north side of the highway. One of the hind wheels was locked and would not turn. The front of the Chrysler was at this time hooked to the tow car by a chain. The tow car and the Chrysler came to a stop on the northern half of the road, facing toward Monterey, with both cars on the pavement. When the parties were pulling the wrecked car out of the ditch its lights were burning. Before it was brought to a stop or immediately thereafter the lights were turned off, but on the body of the tow car lights were burning. When proceeding upon the highway it was ascertained that the tire on the locked rear wheel of the Chrysler was being damaged by being dragged. Decedent stopped his tow car and got out for the purpose of uncoupling the two cars and hitching the tow car to the rear of the Chrysler in order to tow it into Monterey backward. To accomplish this act he went in between the Chrysler and the tow car. While in this position defendant, driving his automobile on the highway, collided with the rear end of the Chrysler; deceased was caught between the front of the Chrysler and the rear end of the tow car and received the injuries which caused his death.