Butticci v. Schindel Furniture Co.

PETERS, P. J.

As a result of injuries received in an intersection accident between two automobiles, John Butticci, the driver of one car, and Emilo Butticci, his son, brought separate actions for damages against Henry Schindel, the driver of the other car. Schindel cross-complained against John Butticci. The actions were consolidated for trial. The jury brought in verdicts for all of the defendants. From the judgments entered on these verdicts John and Emilo Butticci appeal, contending that the evidence does not support the verdicts, and that the verdicts are fatally inconsistent.

The scene of the accident was the intersection of Madrid and Persia Streets in San Francisco. Persia is a through

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street running east and west, and Madrid crosses it at right angles. There are stop signs so located as to require Madrid traffic to stop before entering the intersection. Both streets are straight, Madrid is level, while Persia slopes down hill from the east. The accident occurred on September 16, 1954, shortly after 8 -.30 a. m. The weather was clear and the pavement dry.

John Butticci, in his 1948 Ford pick-up truck, with his son Emilo as a passenger, was driving south on Madrid. Schindel, in his 1947 Cadillac, was going west on Persia approaching the intersection at a speed of between 25 to 30 miles per hour. John Butticci testified that he came to a full stop at the arterial stop sign; that he looked both ways on Persia; that he then proceeded in low gear to the middle of the intersection where Schindel’s car hit his left rear wheel and fender. This version of the accident was corroborated by Emilo. It was contradicted by Schindel. He was positive that the Butticci vehicle did not stop before entering the intersection. He testified that when he was about 10 to 20 feet from the intersection he first saw the Butticci car; that he then applied his brakes lightly, and then, when he saw that the Butticci car was not going to stop at the stop sign, he pushed his brake pedal as hard as he could, but could not avoid the accident. His car left skid marks measuring 45 feet for the front wheels and 36 feet for the rear. Butticci’s car did not leave skid marks. All three principals claimed personal injuries.

Appellants contend that this evidence establishes that Schindel was guilty of negligence as a matter of law. This contention is predicated upon what they call “undisputed physical facts” and “immutable laws of nature.” Relying on the length of the skid marks, on presumed reaction times, and on Schindel’s testimony that just prior to the accident he was going 25 to 30 miles per hour, appellants assert that Schindel must have been at least 86 feet from the intersection when he first saw the Butticci vehicle. This, so it is claimed, demonstrates that Schindel, as a matter of law, was negligently driving at an excessive rate of speed, and negligently failed to apply his brakes in time to avoid the accident. Schindel, of course, had testified that he was but 10 to 20 feet from the intersection when he first saw the Butticci vehicle, but this testimony is classified by appellants as “unbelievable.” This testimony, however, finds some corroboration in the testimony of the officer who investigated the accident and drew the skid