Campbell v. Zokelt

TAYLOR, J.

In these cross-actions for personal injuries and property damage sustained in an automobile collision, defendant and cross-complainant, Willy DeWinter, appeals from an order granting a new trial on grounds of inconsistency of the verdicts of plaintiff, Eva S. Campbell (hereafter Campbell), and defendant and cross-complainant, Carl G. Zokelt (hereafter Zokelt). DeWinter contends that the jurors’ affidavits erroneously stricken by the trial court indicate that the verdicts are not inconsistent, and that in any event, Campbell and Zokelt waived any rights they might have had by failing to object to the forms of the verdict.

The accident occurred on April 27, 1964, on Highway 128 about 14 miles east of Rutherford. Zokelt, an 80-year-old retired mining engineer, was driving his 1957 GM pickup truck east on his way to Sacramento, with Mrs. Campbell, who, on a profit-sharing basis, assisted him in the promotion of mining properties. Attached to Zokelt’s truck was an 8-foot-wide trailer. DeWinter, who was 29 years old, was proceeding westward in a 1960 Mercury convertible on his way from Lake Berryessa to his home in Santa Rosa.

At the scene of the accident, Highway 128 is a narrow winding two-lane road without a center line. The two vehicles met on an extremely sharp curve, after each had seen the. other only an instant prior to the impact. There were no witnesses other than the parties, and the only plausible cause of the collision was that one or both vehicles were on the wrong side of- the road. Accordingly, the contributory negligence of both drivers was an important issue:

.'On the crucial fact, the point of. impact, the evidence was in sharp conflict. Campbell and Zokelt téstified that DeWinter

[318]

was on their side of the road, and that the truck was struck in two places by the Mercury. DeWinter stated that he could not tell whether the Zokelt vehicles were over the nonexistent center line and that he collided only with the trailer. The California highway patrolman who investigated the accident, fixed the point of impact as being on DeWinter’s side of the road, and Zokelt’s violation as the cause of the accident. The garage operator who removed the wreckage noted some indentations containing white paint from another vehicle on the left side of the truck. Zokelt and Campbell testified that the DeWinter vehicle was white or cream colored; DeWinter and the highway patrol officer that it was yellow.