Schurman v. Los Angeles Creamery Co.

[760]

PARKER, J.,

pro

tem.

This is an -appeal from a judgment rendered in favor of plaintiff in an action for damages alleged to have been sustained as a result of a collision between an automobile driven by plaintiff and a milk wagon of defendant corporation. Plaintiff recovered judgment for the sum of $719.30, which included $50 as physician’s fees and $69.30 for damages to his automobile.

Issue was joined on the question of defendant’s negligence and on the amount of damage, and also defendant set up the contributory negligence of plaintiff as an affirmative defense. The ease was tried before the court without a jury.

The first contention of appellant is that the evidence is insufficient to sustain the findings of the court on the question of defendant’s negligence.

Plaintiff testified as follows: “I was traveling in a westerly direction and on the north side of the highway. I was going about twelve or fifteen miles per hour when I struck something. I did not know what it was. I heard two horses jump and then I saw the wagon. I hit the hind wheel of the wagon because the wagon was standing across the highway. I saw the driver of the wagon laying on the ground. He told me that he was passing a machine that was standing on the right-hand side of the road from him, and that he had passed that and was going over to his side of the road. I was on the north side of the road going west. He, the driver of the wagon, was on the south side, but the hind part of his wagon was standing crosswise on the boulevard north of the middle of the road. My lights were lit and it was about an hour and a quarter after sundown. The defendant’s wagon had no light and I was unable to see the wagon before I hit it. As the result of the injury I suffered much pain and sustained various injuries. ’ ’

One Shipman, who was seated in the ear of plaintiff, next him, at the time of the accident, testified substantially as did plaintiff. He saw a lantern, but knew it was not lit.

The driver of the wagon testified that it was loaded with full milk cans; about fifteen cans, each containing two hundred pounds of milk. He testified that if he had been on the right-hand side of the road he would not have been hit, and that his being on the wrong side caused the collision.