Almanerz v. San Diego Electric Railway Co.

BARNARD, P. J.

This is an action for damages for personal injuries. The plaintiff wife, who will be referred to as the appellant, was injured in a collision between an automobile driven by her and a passenger bus owned and operated by the defendants. The collision occurred on December 11, 1933, in the city of San Diego at the intersection of Island Avenue, which runs east and west, and Fifteenth Street, which runs north and south. The appellant was driving east on Island Avenue and when near the center of this intersection was struck by the defendant’s bus, which was proceeding north on Fifteenth Street. It does not appear in the evidence that this intersection was in a built-up territory and there is no evidence that the view of either driver was obstructed. It appears that the bus struck the automobile approximately in the middle of its right side when it was straddling the center line of Island Avenue with its right wheels about 2% feet south of that line and when its rear wheels were 2% feet east of the center line of Fifteenth Street. As a result of the impact the automobile was shoved sideways, in a northerly direction, a distance of 5 feet.

At the conclusion of the plaintiffs’ case the defendants rested without putting on any evidence and submitted the matter to the court for its determination. The court ordered judgment for the defendants and findings were waived. Judgment was entered and this appeal followed.

Some contention is made by the appellant that since the respondents put on no evidence the holding of the court must be taken as a finding that she was guilty of contributory negligence, as a matter of law. This contention is without merit and the only real question presented is whether or not the implied finding that the appellant was guilty of

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contributory negligence, is sufficiently supported by the evidence.

In effect, the appellant’s position is that she had the right of way, having entered the intersection first; that having the right of way she had the legal right to expect the respondents to yield the same to her; that she traveled through the intersection at a legal rate of speed; that it was not her duty to continue to watch the bus or to take any other precautions for her safety; and that it follows, as a matter of law, that she was not negligent in proceeding across the intersection.