Stealey v. Chessum

STURTEVANT, J.

This is an action to recover for personal injuries. The defendants had judgment and the plaintiff has appealed. About 11 o’clock at night on the twenty-ninth day of.November, 1930, the automobile driven by the defendant George Chessum struck Mrs. Florence S. Adams in the back, knocked her down, and so injured her that she died immediately. The accident occurred at a point about halfway -between Burlingame Avenue and Ralston Avenue on El Camino Real, the highway leading from San Francisco to San Jose. As her sole heir the plaintiff, her brother, commenced this action.

Except as we will mention no vehicles were driving on the highway and it was not obstructed by any objects preventing an unobstructed view between Burlingame Avenue and Ralston Avenue. Between the curbs the highway is fifty feet wide. There is a slight downgrade to the south. The highway is paved and is surfaced with black asphaltum. The distance between the curb lines of the two avenues above mentioned is 350 feet. On each side of the highway is a sidewalk four feet wide, but the record does not disclose its condition or whether it is usable. On the western side of the highway between the sidewalk and the

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property line there are large eucalyptus trees. On the same side of the highway, in the tree line, there are three electroliers, one at each end of the block and one in the middle of the block. The one in the middle of the block is located approximately twenty feet south of one tree and seventy feet north from the next tree. There are buildings on each side of the highway—seven in all. On the evening of the accident it was clear until some time after the accident, when the fog came in.

At the time of the accident the deceased was fifty-three years of age and had an expectancy of 16.72 years. She weighed about 115 pounds and was five feet six inches tall. She was wearing a tan-colored coat and had some papers and a purse in her hand. She had been in San Francisco and had come down in the bus. She was seen to alight from the bus at the northwest corner of Burlingame Avenue and the highway. From that moment she was not seen again •by anybody except the defendant and his companion. Those two had been in north Burlingame and were returning. They were driving south on the highway at a speed which each stated to be thirty or thirty-five miles an hour. At this point it may be remarked that there was evidence that the accident happened in a residence district and that the speed limit at that point was twenty miles an hour. As the automobile approached from the north it was driven slightly on the right-hand side of the middle of the highway. When it was opposite a point approximately in the middle of the block the driver saw the decedent six to ten feet in front of him. Her back was toward him and she was apparently walking in the same direction that he was driving. He attempted to stop, but his car hit decedent, knocked her down and from the injuries inflicted she died immediately. An examination disclosed that both legs were broken, that her neck was broken, and that her chest was crushed. The right-hand light on the automobile was broken, the right-hand fender was bent, and the hood on the engine was dented, bent, or twisted, according to the language of different witnesses. After the impact the driver drove his automobile up to the sidewalk and stopped. The distance between the automobile and the body of the deceased was about forty-five feet. The body of the deceased lay in the highway with her head resting on the