Smith v. Johnson

MUSSELL, J.

This is an action for damages alleged to have been caused by the careless and negligent operation of his automobile by the defendant causing it to collide with an automobile being driven by plaintiff at the intersection of

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Miramar Road and Highway 101 in San Diego County. A jury trial resulted in a verdict in favor of plaintiff but no damages were assessed against the defendant. Plaintiff’s motion for new trial was granted on the grounds of the insufficiency of the evidence to justify the verdict and defendant appeals from the order granting this motion.

On July 30, 1954, at about 4:45 p.m., plaintiff, who was employed at Scripps Institute of Oceanography, was driving his Buick automobile in an easterly direction on Miramar Road. When he approached the intersection of this road and Highway 101, which runs generally north and south and is a four-lane highway, he stopped and waited for the traffic light to change. When the signal changed to green, he started across Highway 101, intending to proceed eastward on Miramar Road. Defendant, who was also driving a Buick automobile, approached the intersection from the east and when the signal changed to green, he proceeded to make a left-hand turn on Highway 101, intending to travel south thereon. The two cars met at about the center of the intersection, where both were stopped approximately 2 feet apart. There was no contact between the ears at that time, but neither could proceed without colliding with the other. Defendant shouted to plaintiff to move and plaintiff told him to

move;

that he (plaintiff) had the right of way. Defendant then got out of his car, went over to plaintiff’s automobile and invited him to fight. Plaintiff refused the invitation and defendant then returned to his car and drove it forward until the two front bumpers were touching. He then “gunned” the motor. “The tires smoked, the wheels spun, and he burned rubber for approximately a minute. ’ ’ Plaintiff put his foot on the brake pedal of his car and defendant was unable to move it. Defendant then got out of his car and again went over to plaintiff, reached through the car window, knocked plaintiff’s glasses off, and tried to strike him. Defendant then opened plaintiff’s car door, took hold of plaintiff’s arm and endeavored to pull him from the vehicle. However, one of the passengers in plaintiff’s car held on to plaintiff and kept him from being pulled out. Defendant returned to his car and again tried unsuccessfully to push plaintiff’s vehicle back out of the highway, and within a few minutes police officers arrived at the scene.