Langsam v. Fabregat

McMURRAY, J. pro tem.

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This is an appeal by plaintiff from a judgment entered in favor of defendant after a non-jury trial in which the judge found that both defendant and plaintiff were guilty of negligence, and from an order denying new trial.

The appellant’s basic argument here is that under the evidence appellant was not guilty of contributory negligence as a matter of law. The evidence adduced at the trial, with the familiar intendments in favor of respondent applied thereto, would indicate that appellant was driving his car traveling north on Mansfield Avenue, at approximately 9 :30 on a rainy evening; that upon approaching a stop sign on Mansfield at the corner of Third, appellant while 50 feet back from Third Street was traveling at 25 miles per hour; that he slowed down and stopped some 25 feet from the intersection, or perhaps 20 feet therefrom; that he then proceeded at 10 miles per hour across the intersection; that he stopped for a full minute and did not think he saw any cars going east or west on Third Street. After he had looked left and right, he looked straight ahead and started to go without again looking to the left or to the right; that when he looked to his right, he saw no moving automobile but saw lights coming “from far away, not from the middle of the block.”

The foregoing evidence was adduced in appellant’s deposition taken before the trial, this deposition was introduced at the trial, and was before the trial judge. At the trial, appellant testified that “After I stopped, thén I don’t know what happened. I just know one thing. They woke me up on the

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lawn, somebody’s lawn. That’s all. Nothing, just like a lightning; then I find myself on the lawn.” Appellant also testified that he did not see any lights coming from the east as he had testified in his deposition.

Respondent who was traveling west testified that he did not see the appellant at any time, and that he was traveling at approximately 25 to 30 miles per hour, and the evidence at the trial amply supports the trial judge’s finding of negligence on the part of defendant.

The argument of appellant is in part grounded upon the testimony of a medical doctor that injuries such as those sustained by appellant would “almost certainly have resulted in a considerable loss of memory for the immediate events of the injury, and also probably for an event preceding the injury”; and that because of such loss of memory, the plaintiff was entitled to the presumption that he exercised due care, which was first enunciated in this state in