Creamer v. Cerrato

GRAY, J.,

pro

tem.

Appellant sued to recover damages for personal injuries, received by her as the result of a collision between her automobile, parked on its right side of an avenue, and an automobile truck owned by respondent Y. Boido, and operated, on its wrong side, by respondent John Cerrato, his employee. After trial, the jury returned

[443]

its verdict in favor of respondents. From the judgment entered thereon, she appeals, assigning as error six instructions given at respondents’ request.

The following summary of the material testimony will suffice for a proper consideration of her criticism of these instructions. Appellant stated that she had parked her automobile, headed easterly, on the south side of Park View Avenue about 30 feet westerly of its southwest corner with Miriam Street and had visited a friend residing on the north side of the avenue; that, as she stepped off: the north curb, on her return to her automobile, she saw respondents’ truck 416 feet easterly of her automobile, coming westerly on its right side of the avenue, down a grade at a pretty rapid rate; that, as she got to her automobile door, she heard the screeching of a machine and saw the truck in the center of the avenue, distant 110 feet from her and 25 or 30 feet from a little girl, who was 4 feet from the northerly curb; that the truck swung out in a zigzag course, struck the front fender and spare tire in the fenderwell of her automobile and overturned, striking her in the back and skidding 27 or 30 feet past the rear of her automobile. This girl’s mother, called by appellant, testified that her child had taken two or three steps into the avenue from its north curb when she saw the truck approaching at a speed of 30 to 35 miles per hour; that, in response to her command, the child turned back; that the driver of the truck applied his brakes, swerved first to his left, as if to turn southerly into Miriam Street, and then to his right, when he struck the automobile and overturned. Appellant’s second witness said that he heard a scream and, upon looking east, saw the truck traveling at a speed of 25 to 30 miles per hour, on its right side 5 or 6 feet from the curb and the child, apparently standing, 10 or 15 west of the right front of the truck; that the driver turned suddenly to his left, going as if to turn toward the southwest corner and then, to his right, hitting the front end of the automobile and upsetting 27 feet beyond. Respondent Cerrato testified that, intending to turn south into Miriam Street, he was driving west on his right side of Park View Avenue, 5 or 6 feet from its north curb, at a speed of 15 miles per hour; that, due to the steep grade, he had his foot on the brake; that he first saw the little girl standing on the north curb; that, suddenly, when he was