Towers v. Perez

SHINN, P. J.

Louis Francis Perez and Karl Koerber were named codefendants with Clarence Arthur Towers in an action brought by John R. Morris for damage to his property as a result of a collision between motor vehicles. A jury trial was had in which a verdict was returned in favor of plaintiff against all defendants. Perez and Koerber moved for a new trial and a judgment notwithstanding the verdict; the latter motion was granted, and judgment was entered in their favor. Towers subsequently paid and satisfied the judgment and has instituted this appeal for reversal of the judgment as to Perez and Koerber and to establish his right of contribution against them. (Code Civ. Proc., §§ 875, 876.) He does not appeal from the judgment against him.

In reviewing a judgment notwithstanding the verdict, we must view the evidence in the light most favorable to the verdict

(McFarland

v.

Voorheis-Trindle Co.,

52 Cal.2d 698, 703 [343 P.2d 923]), and under the rule that a motion for judgment

non obstante veredicto

in favor of a defendant may properly be granted “ 1 “when, and only when, disregarding conflicting evidence, and giving to plaintiff’s evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.” (C

ard

v.

Boms, supra,

[210 Cal. 200 (291 P. 190)], at p. 202.)’”

(McFarland

v.

Voorheis-Trindle Co., supra,

52 Cal.2d 698, 703.)

[703]

Towers testified that on March 29, 1958, about 7:30 a. m. he was driving his automobile in a northerly direction on Pacific Boulevard in Glendale and approaching the Dryden Avenue intersection. Pacific is about 46 feet wide. Towers had turned onto Pacific approximately a half mile south of the intersection of Dryden and Pacific. He first observed the truck owned by Koerber, and operated by Perez, when it was about 50 yards south of Dryden. It was in the right lane of traffic and was also traveling in a northerly direction, the right side of the truck being about 4 or 5 feet from the right curb. There was no other traffic on Pacific nor were there any vehicles parked on the street. The truck was equipped with rear-view mirrors of a type that extended out from the cab of the truck, one on each side, and so situated that if one looked in the mirrors he could see any cars traveling behind the truck. Traveling between 30 and 35 miles per hour Towers overtook the truck and started to pass on the left about 35 yards from Dryden; he testified he could not have passed it on the right. The left side of the truck was approximately 5 feet to the right of the imaginary middle line of Pacific. As he approached the truck Towers looked to see whether its operator was signaling for a turn and as he started to pass the truck he observed no signal, either hand, or automatic, or blinking light. As he started to pass the truck, he went about half way into the left lane on Pacific as both vehicles approached Dryden. At that moment the truck started turning left, Towers swerved to his left but to no avail, and the vehicles collided. The impact was between the right front fender of the automobile and the left front fender of the truck. Towers’ car continued on to the left, went across the street, jumped the curb and hit a pillar in plaintiff’s gas station. A police officer who arrived shortly after the accident testified that the point of impact was approximately 17 feet, 8 inches south of the south curb of Dryden and 21 feet west of the east curb of Pacific.