McDougall v. Morrison

PETERS, P. J.

Plaintiff brought this action to recover for personal injuries alleged to have been received when the automobile in which she was riding collided with that driven by the defendant. The ease was tried before the court without a jury, and resulted in a judgment for plaintiff. From that judgment defendant prosecutes this appeal, his sole contention being that, as a matter of law, the evidence shows that plaintiff was guilty of contributory negligence. A reading of the record demonstrates that, on the basic issues of negligence of defendant, contributory negligence of plaintiff, and proximate cause, the evidence is in direct conflict. For that reason the judgment cannot be disturbed.

The accident occurred on a rainy night on December 20, 1940, at about 6:30 p. m. on the El Camino Real in the city of San Mateo. Plaintiff lives on the west side of El Camino Real, about half way between Tilton Avenue to the south, and Mt. Diablo Avenue to the north. The garage connected with plaintiff’s home is back a considerable dis

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tance from the highway, and is connected therewith by a driveway. The front of plaintiff’s house is bordered by a hedge, and between the curb and the sidewalk is a row of large trees, extending both northerly and southerly from plaintiff’s residence. On the night in question, plaintiff’s husband, accompanied by plaintiff, drove down the driveway intending to drive north on El Camino Real. According to the evidence produced by plaintiff, her husband stopped their car at the edge of the highway where he had a clear view in both directions. The husband testified that he looked both north and south, and saw the headlights of two approaching vehicles, one from the north, about four or five blocks distant, and the other (defendant’s) some five hundred feet away at about Tilton Avenue to the south; that it seemed to him a safe time to come out; that he watched defendant’s car at all times; that he proceeded out into the highway in low gear and then changed to second; that he proceeded straight out into the highway, and, when he reached the white line in the center, turned north (the same direction in which defendant was proceeding) ; that just as he was turning and straightening out his car he noticed how defendant’s car was “climbing right up on top of me when my wife hollered how fast he was going”; that defendant was going fifty or sixty miles an hour at the time of the accident. The car of defendant sideswiped that of plaintiff, damaging plaintiff’s ear on the right side, and causing plaintiff to be thrown to the highway, suffering the serious injuries of which complaint is made. Plaintiff corroborated her husband’s testimony in all material respects. The evidence also showed that the highway in front of plaintiff’s home is over fifty feet wide; that the accident occurred while plaintiff’s car was facing north and straddling the center white line; that no automobiles were parked on the east side of the highway; that there was a clear area on the highway over twenty feet to the right of plaintiff’s car. Admittedly, the lights on both plaintiff’s and defendant’s cars were on. After the accident, defendant’s car kept its forward motion and stopped about three hundred feet to the north of the place of collision.