Gunn v. President Tank Lines, Inc.

VALLÉE, J.

Appeal by defendant from an order granting plaintiff’s motion for a new trial.

The action is to recover damages for personal injuries sustained in a collision between a 1955 Dodge automobile driven by plaintiff and defendant’s 1948 tank truck and tank pull trailer, operated by Herman Cole,

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an employee of defendant. The tank truck and tank pull trailer had an overall length of 60 feet; it was empty and weighed about 33,000 pounds.

The accident occurred about 10 a.m. on May 19, 1956 at the intersection of Foothill Boulevard and Etiwanda Avenue in San Bernardino County. Foothill Boulevard was a through highway (U.S. Highway 66) with two lanes running east and two running west, each lane measuring about 10 to 11 feet. A 4%-foot painted divider separated the north and south sides of the highway, and each side had a paved shoulder about 8 feet wide. Etiwanda Avenue runs north and south, was about 49 feet wide, and had boulevard stop signs for vehicles entering Foothill in either direction. The area where the accident occurred was rural in character. Foothill was in a 55 mile per hour zone.

Plaintiff was traveling east on Foothill in the lane next to the dividing strip, referred to as lane E-l. Defendant’s truck was approaching in a westerly direction on Foothill, also in the lane nearest the divider. The day was clear and dry. Traffic was light and there were no eastbound cars in front of plaintiff for a half mile or a mile from the intersection.

Plaintiff testified: he was traveling between 40 and 45 miles an hour and estimated that when he first saw the truck it was about 800 feet “down the road,” traveling about the same speed; as he approached the intersection he slowed down slightly; he did not see the signal arm on the truck raised for a left turn or any signal of an intention to make a left turn; when he was about 75 feet west of the intersection the driver of the truck suddenly made a left turn in front of him, traveling about 15 miles an hour; he immediately applied his brakes and swerved to the right, skidding into the impact, and glancing off defendant’s vehicle; he estimated he was traveling 10

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to 15 miles an hour at the moment of impact. There was evidence that the truck was traveling from 2 to 6 miles an hour as it made the left turn.