Hoffman v. McNamara

[282]

DOOLING, J.,

pro

tem.

Appeal from a judgment for plaintiff against appellant, entered pursuant to the verdict of a jury, for damages received by plaintiff in a collision between a laundry truck driven by him and an automobile driven by appellant.

At the place of collision the main coast highway between Los Angeles and Santa Barbara runs approximately east and west and is crossed practically at a right angle by another public highway called Butterfly Lane.

Plaintiff and respondent on the morning of the collision was driving westerly on the coast highway and defendant and appellant drove northerly on Butterfly Lane and made a left-hand turn on to the coast highway. The two machines collided at a point on the coast highway about thirty feet westerly from the westerly line of Butterfly Lane projected across the coast highway.

Appellant contends: 1. That the trial court erred in denying her motion for a nonsuit; 2. That the trial court erred in denying her motion for a directed verdict; 3. That the verdict of the jury is not supported by the evidence and is against law; and 4. That the trial court erred in refusing to give two instructions proposed by appellant.

The first three points may be conveniently considered together, since they all rest upon the contentions that the evidence fails to show any negligence of appellant and affirmatively shows contributory negligence on the part of respondent.

Preliminarily we may dispose of the claim of appellant that a nonsuit should have been granted because of plaintiff’s failure to prove that appellant was the person driving the automobile which collided with his truck. The failure of proof in this regard, if any theretofore existed, was cured by a stipulation between counsel that the evidence given by appellant in support of her cross-complaint should be considered as a part of plaintiff’s ease. Appellant herself testified that she was driving the automobile at the time of the collision.

We think the evidence was ample to support the finding that appellant was negligent. According to her own testimony appellant turned left from Butterfly Lane on to the coast highway by a course which took her consid