Matlock v. Farmers Mercantile Co.

TAYLOR, J.

Defendants appeal from an order granting a new trial to plaintiffs in their action for damages for personal injuries sustained in an intersection collision between an automobile driven by plaintiff Leferink and a truck owned by defendant Farmers Mercantile Co. (hereafter Farmers) and driven by their employee, defendant Harry A. Moranda. There was no plea of contributory negligence. Farmers admitted the agency and scope of employment, so the only questions submitted to the jury were the negligence of Moranda, proximate cause, and damages. The trial resulted in a defense verdict and thereafter, the court granted plaintiffs’ motion for a new trial on the ground of insufficiency of the evidence. The contentions on appeal are that the order granting the new trial for insufficiency of the evidence cannot be sustained as the evidence fails to demonstrate any negligence on the part of Moranda, and the trial court failed to comply with section 657 of the Code of Civil Procedure.

[364]

<The record reveals the following: the accident occurred at the intersection of Abbott Street and Airport Boulevard in Salinas. Abbott is a four-lane divided street running north and south; Airport, a two-lane street running east and west, and terminating at Abbott in a T intersection, with a stop sign for the westbound traffic. About 7 :45 a.m., on December 9, 1964, plaintiff Leferink, with his father-in-law, plaintiff Matlock, as his passenger, approached the intersection in his I960 Studebaker sedan. He was proceeding west on Airport, stopped at the stop sign at the Abbott intersection, and looked for traffic in all directions. He intended to cross the northbound lanes of Abbott and make a left turn into the innermost southbound lane of Abbott. Meanwhile, Moranda, driving a light colored one-half ton pickup truck, approached the intersection traveling north on Abbott in the innermost northbound lane at a speed of 40 miles per hour.

The pavement was wet; the weather was hazy with heavy fog and limited visibility. Leferink estimated the visibility at about 100 feet; Moranda, from 300 to 500 feet; one of the police officers investigating the accident, from 75 to 275 feet.

The uneontroverted evidence indicates that although Moranda had had his headlamps on and windshield wipers going, at one point in his travel he had turned both off about four miles before the intersection and never turned them on again, although he noted that the fog was drifting in and out. He saw that the southbound vehicles on Abbott near the intersection all had their headlamps on. Plaintiffs, one of the police officers, and the ambulance driver, indicated that all vehicles traveling in the area had their headlights on. After Leferink stopped at the stop sign at Abbott and Airport, he looked to his left and saw the lights of three northbound cars nearing the intersection., He waited for the cars to pass, then saw no lights or other evidence of approaching vehicles, and started across the intersection. He was across the outermost northbound lane and almost across the innermost northbound lane beginning his left turn when Moranda’s unlighted pickup truck traveling in that lane hit him broadside. The truck left 70-75 feet of skidmarks.