Harveld v. Milani

KNIGHT, J.

An automobile belonging to the defendant Mrs. E. Milani and driven by her daughter, Adele Milani, with Mrs. Milani’s permission, collided with another automobile driven by one Lundgren about 10:30 o’clock at night on Cliff House Hill in San Francisco. Plaintiff was riding with Lundgren at the time and was injured. On account of said injuries he brought this action for damages against Miss Milani and her mother; and a jury returned a verdict in his favor and against both defendants for the sum of $6,000. From the judgment entered thereon defendants appeal.

The evidence, although conflicting on some points, is amply, sufficient to show that the collision was proximately caused by the negligent operation of the Milani car. At the time of the accident it was descending the hill at an excessive speed, and testimony was introduced by plaintiff to prove that as it approached the Lundgren car, which

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was ascending the hill, it swerved suddenly to the left directly toward the Lundgren car, which was traveling at a reasonable rate of speed, and although Lundgren tried to escape being struck by maneuvering his ear suddenly to his right, away from the Milani car, he was unable to get out of the way, and his car was struck with great force. The testimony on the part of plaintiff was strongly supported by the physical conditions existing immediately following the impact.

Two grounds for reversal are urged, one of them being that the court erred in giving an instruction on contributory negligence. This instruction correctly declared the law upon the subject up to the concluding sentence, which read as follows: “It [contributory negligence] admits actionable negligence on the part of the defendant, the responsibility for which he avoids by showing a concurring and contributory negligence on the part of the person injured.”

In some of its earlier decisions, particularly in

Linforth

v.

San Francisco Gas & Flee. Co.,

156 Cal. 58 [103 Pac. 320, 19 Ann. Cas. 1230], which was reaffirmed in