McGuire v. W. A. Thompson Distributing Co.

CONLEY, P. J.

This is an appeal fom a judgment for the defendants in an action for personal injuries arising out of a collision of automotive vehicles. The sole ground of appeal is an alleged irregularity in the proceedings after the jury retired for their deliberations and returned into court with a request to hear certain testimony reread. Appellant claims that the trial judge failed to comply fully with the jury’s expressed wish and that he compounded his mistake by telling the jurors that there was no evidence on the subject other than that which he ordered read. The respondents, on the contrary, contend that the trial judge complied fully and explicitly with the request of the jury. The appellant concedes that the record contains substantial evidence to support the verdict, and he does not suggest that the court erred in its instructions or in any ruling on the evidence.

A collision occurred on Friday evening, August 22, 1958, on Highway 178 in Kern River Canyon, about a mile above Ridge Bar Ranger Station on the road between Bakersfield and Kernville between a Dodge 2-ton beer truck driven by the respondent Paul Bates for his employer, W. A. Thompson Dis

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tributing Company, and a Ford pickup operated by the plaintiff, Clyde P. McGuire. The plaintiff sustained injuries to his head, back and left arm with the result that the amputation of the arm became necessary.

At the time of the collision the beer truck operated by Bates was traveling somewhat downhill in a westerly direction, and he was making a left-hand turn following the course of the highway, while the Ford pickup driven by McGuire was moving easterly uphill and making a right-hand turn; each of the vehicles was traveling at a speed of between 30 and 35 miles an hour. As the automobiles rounded the curve, Bates testified that he saw the McGuire vehicle when it was 40 to 45 feet away, and McGuire stated that he saw the Dodge truck when it was approximately 35 feet from him. As soon as he saw the other car Bates hit his brakes. The impact occurred on the turn. The Dodge truck stopped within 40 feet, but the McGuire pickup traveled 325 feet from the place of the collision on around the right-hand turn.

Bach of the drivers testified that the collision happened on his own side of the center white line. Enlightening evidence addressed to this question was given by witnesses other than the parties. One, Lawrence Byrd, testified that, accompanied by his wife and children, he was preceding the McGuire vehicle up the grade at a distance of from 150 to 200 feet; he met and passed the beer truck, and it was then well over on its own side of the road; no difficulty was experienced by Byrd in meeting and passing the truck in the area where the “skip skids” (hereinafter referred to at length) were shown on plaintiff’s exhibits. Within a second or two after he met and passed the beer truck, he heard the crash of the collision behind him. He had heard no tire squeals before the crash. Mrs. Byrd testified similarly. It is therefore clear that shortly before the collision the beer truck was on its own proper side of the white line. Further evidence confirmatory of the defendants’ contention was given by Charles L. McMasters, of the California Highway Patrol, who was dispatched to the scene of the accident shortly after its occurrence; he found the beer truck halted on the roadway 40 feet from the point of impact and the Ford pickup 325 feet in an opposite direction from the point of impact; he noted dirt, debris, and a piece of chrome from the Ford pickup located in the westbound lane — on the Dodge truck driver’s side of the white line. Mr. McMasters also saw solid dual tire marks some 15 feet in length; they were light in color, and, to use the witness’