Boccalero v. Wadleigh

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover a judgment for damages alleged to have been suffered in an automobile collision. The defendant answered and a trial was had before the court sitting with a jury. The jury returned a verdict in the sum of $4,000. The defendant made a motion for a new trial, his motion was denied, and from the judgment entered on the verdict he has taken this appeal and has brought up typewritten transcripts. The accident happened about 9 P. M. on Sunday the twelfth day of May, 1929. It was the theory of the plaintiff, and she called witnesses in support of her contention, that on the date above mentioned she and her husband and Mr. and Mrs. Verdenaga had been out on the north end of San Pablo Avenue and were traveling south toward Oakland iñ a Jewett automobile. The men were on the front seat and the women were on the back seat—the plaintiff on the right-hand side. The traffic was considerable—there were two lines of cars moving south and two lines of cars moving north. A double street-car track occupies the middle of San Pablo Avenue, one track for north-bound cars and another track for south-bound ears. A part of the avenue is paved. As one travels south the right-hand side of the

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street is not paved but graveled. The witnesses for the plaintiff contended that for several blocks they had been traveling along in one of the traffic lines leading to the south and that they moved with the traffic^ sometimes going fifteen miles an hour, sometimes going twenty-five miles an hour. It was an admitted fact that the speed limit in that neighborhood is forty miles an hour. Continuing, the story as told by the plaintiff’s witnesses was to the effect that after they had passed Schmidt Lane, a distance of thirty-five yards or more, the defendant’s car approached from the rear. At least one of the plaintiff’s witnesses testified that for approximately, a half mile back the defendant had been driving his Hupmobile at approximately forty miles per hour, passing other vehicles, and in this manner falling in and falling out of line. When the Jewett automobile yas at a point thirty-five yards south of Schmidt Lane and in the line of traffic as above stated the Hupmobile came forward with great velocity and hit the Jewett car in the rear. The plaintiff testified that the impact was of such violence that she was thrown against the back of the seat in such a way as to injure her hip and that then she rebounded to the front, hitting her head and shoulder with great severity. Some of her witnesses testified that the impact was so severe that the Jewett car was shoved to the front some distance and that the right rear corner of the car was mashed and that the spare tire which was attached to the rear end was shoved to one side. After the accident the ear was found to be so damaged that it would not run under its own power and it was towed away. The theory of the defendant was quite different. He and the passengers in his car testified that the Jewett car came through Schmidt Lane from the east, and, executing a left-hand turn, that it crossed through the traffic and had arrived at a place on the westerly car track and was at an angle of about forty-five degrees with said track when the defendant’s car approached from the north. Some of the defendant’s witnesses stated that when their car was approximately two car-lengths behind they observed the position of the car ahead and that the defendant put on his brakes and slowed down to seven or eight miles an hour, but could not stop in time and that the defendant’s car hit the Jewett car on the rear right-hand corner a slight but not a violent blow.