Clark v. Wallman

WARD, J.,

pro tem.

This is an action for damages for personal injuries alleged to have been sustained by the plaintiff Herman Clark under the following circumstances. On August 2, 1929, the plaintiff was driving a 1927 Dodge coupe automobile in a westerly direction on Addison Avenue in the city of Palo Alto. At the same time and place the defendant was driving a 1930 Nash sedan automobile in a southerly direction on Emerson Street. At the intersection of these two streets the cars of the plaintiff and defendant collided. As the result of that collision the plaintiff sustained injuries. The plaintiff in his complaint charged .the defendant with negligence in the operation of her automobile. The defendant denied any negligence on her part, and, as a separate defense, pleaded contributory negligence on the part of the plaintiff. The case was tried before'a jury, which returned a verdict in favor of plaintiff. Judgment was entered accordingly. A motion for a new trial was denied and defendant appealed.

Plaintiff, about to enter the intersection, saw defendant’s ear seventy-five to ninety feet away approaching the intersection at a speed of thirty-five to forty miles an hour. Plaintiff, driving on the right side of the street at a lawful speed, made no effort to stop. It is the contention of appellant that the conduct of the plaintiff and respondent at the time and place of the accident which gave rise to the respondent’s injuries was negligence as a matter of

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law, and that such negligence proximately contributed to the happening of the accident. Appellant cites

Kinney

v.

King,

47 Cal. App. 390 [190 Pac. 834], but that was a ease in which an ordinance was introduced which in effect provided that when vehicles approach simultaneously, the vehicle approaching from the right has the right of way. In the ease at bar the statute provided, “When such vehicle is traveling at a lawful rate of speed.” Defendant was not traveling at a lawful rate of speed and hence did not have the right of way. Appellant’s position in effect is that plaintiff, going at a lawful rate of speed, seeing defendant approaching at an unlawful rate of speed, should have given the right of way. To lay down such a rule would be an invitation to speed-mad motorists to violate the law, and if an accident should occur, to place the blame, as a matter of law, upon the driver operating within a lawful rate of speed. It is the duty of one operating within a lawful speed in approaching an intersection to “use due care to avoid colliding with another; he must be ever alert and watchful, so as not to place himself in danger, and while he may assume that others will exercise due care, he cannot for that reason omit any of the care which the law demands of him”.