Cseri v. D'Amore

SHINN, P. J.

Appeal by defendant D’Amore from a judgment on verdict in favor of plaintiff for damages suffered in an automobile accident. Plaintiff was a passenger in a car driven by Mrs. Barker which collided at an intersection with a ear driven by appellant. Plaintiff sued D’Amore and Mrs. Barker. Upon the eve of the trial Mrs. Barker paid $9,500 in settlement of her liability to Cseri and was dismissed from the case as a defendant in the Cseri complaint.

The time of the accident was about 2 a.m. The location was in Los Angeles at or in the intersection of Laurel Canyon Boulevard and Canton Drive. Both cars had been traveling south on Laurel Canyon Boulevard. Appellant was alone in her car, a white Thunderbird.

The substance of the testimony of appellant (called under Code Civ. Proc., § 2055) was that she entered the intersection of Canton Drive, an east and west street, and was stopped to make a left-hand turn when her car was struck in the rear by the Barker car.

Plaintiff’s theory as developed in her testimony was that the D’Amore car overtook and passed the Barker car on the right side, pulled in front of it and slowed down or stopped part way into the intersection. Mrs. Barker did not testify.

[624]

The first contention of appellant to be considered is that there was no evidence of her negligence other than the testimony of plaintiff, and that it was insufficient to justify a finding of negligence. We do not find it insufficient. The damage to ears and their positions after the collision indicated that the right rear of appellant’s car was struck by the left front of the Barker car when both cars were in the second lane from the right-hand curb. Plaintiff testified that she was seated in the passenger seat looking straight ahead and saw out of the corner of her eye a “white flash” which she believed to be a white car passing on her right. She had been in this country about four years and had imperfect but adequate command of her English. Time and again in describing what she saw, she said it was a “big white flash” or “a big bright flash.” She was questioned on cross-examination as follows: “Q. Now, was this white flash a light or was it actually a car?” and she answered, “It is a car. Q. You distinctly saw a ear? A. Yes, it is .... Q. You never saw the car move in front of your car, did you? A. I know is pulling there, because then I just yell and I say ' Stop,’ or ‘Be careful,’ or something like that. . . . Q. Isn’t this just an impression of your thoughts on the matter, rather than what you actually saw? A. No.” Giving full credit to plaintiff’s description of the occurrence the jury could have believed, and apparently did believe, that just before the accident happened a white car passed the Barker car on the right, pulled in front of it and slowed down or stopped. This was sufficient as evidence of appellant’s negligence.