Karstensen v. Western Transportation Co.

PEEK, J.

This is an action to recover damages for the alleged wrongful death of Alvin M. Karstensen instituted by his widow and minor children who alleged in their complaint that a truck owned by the defendant Western Transportation Company was driven in such a negligent manner by the defendant Charmley as to cause it to collide with the automobile driven by the decedent at the intersection of Highways No. 40 and 29 near the city of Vallejo, and that as a result thereof the decedent sustained injuries resulting in his death. Defendants’ answer admitted ownership of the truck and that defendant Charmley was operating it in the course and scope of his employment but denied the allegations as to their negligence and alleged that the collision was the proximate result of decedent’s own negligence. The ease was tried by a jury. At the conclusion of plaintiffs’ case the defendants moved for a nonsuit, which motion was granted and judgment entered thereon from which this appeal is taken.

It appears from the record that the decedent was driving a 1941 Buick s§dan in a southerly direction on Highway 40 and crashed into the side of defendants’ truck and trailer which were proceeding north on Highway No. 40 and making a diagonal left turn from said highway on to Highway No. 29 in order to proceed toward the city of Vallejo.

Appellants concede that decedent disregarded stop signs at the point where Highway No. 29 joins Highway No. 40, which protected vehicles making left turns from Highway No. 40 on to Highway No. 29, and struck the truck and trailer approximately in the middle thereof as it was negotiating the turn. At the time of the accident Highway No. 40 was a four-lane highway and was divided for a short distance both north and south of the “Y” where said Highway 29 joined said Highway 40.

Jack W. Gates, a witness called by appellants, testified that he, the decedent, and Harold Hicks, in the course of a business trip had driven to Elk Grove from San Francisco. The car which was owned by Hicks was being driven by decedent at

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Hicks’ request. The parties concluded their business in Elk Grove near midnight on the 30th day of October 1945, and began the return trip to San Francisco via Highway 40. The night was black and although it had rained intermittently it was not raining at the time of the accident but the windshield wipers were working. Just prior to the accident the ear was traveling approximately 40 to 45 miles per hour. When the car reached the crest of a hill estimated by Gates to be 700 to 800 feet from the point where Highway 29 merges with Highway 40, a short distance south of Vallejo, he noticed the flashing of a spotlight. Gates further testified that when he observed the flashing he thought the vehicle had broken down. He also testified that he saw the light flash four or five times, that it was bright and shone into the car enough to cause him to sit up from his position in the back seat. Specifically he stated that “from the last time it flashed there was about a second and then there was—you couldn’t see anything then, it looked like a blank wall in front of us and it was a truck,” that the effect of the flashing light was such that “You couldn’t see anything for, as I say, for a second or two,” and that the collision occurred about four or five seconds after he first observed the flashing light. He himself did not see the stop sign at the intersection because his attention was attracted to the flashing light nor did he see any other lights or any vehicular traffic in either direction. He further testified that “it felt like” decedent had taken his foot off the gas pedal just prior to the accident. On cross-examination Gates testified that the speed of the car at the time of the collision was approximately 40 to 45 miles per hour; that there was a slight slackening of speed before the car collided with the truck and that the car traveled approximately 70 feet between the time he observed the last flash of the light and the occurrence of the collision, while in his deposition he estimated the distance to be 400 to 500 feet.