Silva v. Mitchell

SCHOTTKY, J.

Plaintiff, Nancy A. Silva, has appealed from a judgment entered upon the verdict of the jury in favor of defendants. The action arose out of an automobile collision that occurred on April 1, 1958, on Biverside Boulevard in Sacramento, involving an automobile operated by defendant Gerald Mitchell and owned by defendant Bertha Mitchell.

The record shows that the accident occurred about 1:15 p. m. on Biverside Boulevard at a point where there is a slight curve in the road. Biverside Boulevard is a 2-lane highway running north and south with a paved 10-foot lane for traffic in each direction. There is also an unimproved dirt shoulder alongside each lane. It had been raining the day of the accident, but it was not raining at the time of the accident. Gerald Mitchell was driving south at a speed of about 50 miles an hour when he observed a large puddle of water that nearly covered the southbound lane. He slowed his speed to about 45 miles per hour and pulled into the northbound lane to go around the puddle. As he did so, he saw the Silva vehicle approaching some two or three hundred feet away, so he started to pull back into his proper lane. He also applied his brakes. His car went into a spin and he was unable to control it. The front of the Silva car, which was being driven by Mrs. Silva, collided with the right rear fender of the Mitchell vehicle. The Mitchell car then went off the east portion of the road. Investigation disclosed that there was one skid mark of 18 feet, another of 25 feet and a third of about 39 feet on the roadway and one of about 25

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feet off the roadway and to the point where the Mitchell car came to rest. These marks were at an angle to the road. The investigating officer testified that the skid marks indicated a vehicle skidding sideways.

Mrs. Silva was driving north about 25 or 30 miles an hour. She testified that she did not see the Mitchell vehicle until it was 20 or 25 feet away. Her husband who was with her testified that he first saw the Mitchell vehicle when it was some 300 feet away. Mrs. Silva did not apply her brakes or swerve to avoid the accident.

The sole contention of appellant is that it was reversible error for the court to instruct the jury on the question of contributory negligence. Appellant contends most earnestly that as a matter of law she was not guilty of contributory negligence and that the court should have so instructed the jury.