Goyette v. Hellman

THE COURT.

The above action was brought upon a claim for damages to plaintiff's automobile arising out of a

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collision with an automobile owned and operated by defendant, it being alleged that the damage was caused by the latter’s negligence.

Defendant denied the allegations of the complaint-, alleged that the damage suffered by plaintiff, if any, was due to his contributory negligence, and sought to recover for injuries to his own automobile which he alleged were due to plaintiff’s negligence.

The cause was tried by the court, which found for the defendant, and entered judgment against plaintiff in the sum of $400.

The latter, who has appealed, claims that the finding that-he was negligent is not supported by the evidence.

On December 7, 1929, at about 6:30 o’clock P. M., plaintiff was driving south along Twenty-ninth Avenue while defendant- was proceeding east along Judah Street in San Francisco. These streets intersect, and the collision, which damaged both cars, occurred within the intersection. It was stipulated that the collision occurred in a zone where the speed limit was twenty miles an hour. Defendant testified that when he entered the intersection he looked to his right to observe the traffic, and then, glancing to his left, saw plaintiff three or four feet to the north. At this time defendant’s car was about two feet west of the center line of Twenty-ninth Avenue and south of the center line of Judah Street. According to certain witnesses the collision occurred south of the center line of Judah Street and east of the center line of Twenty-ninth Avenue, and it is admitted that the front of defendant’s automobile struck the side of the other car. The record contains no direct evidence as to which automobile first entered the intersection. Defendant further testified that when he first saw plaintiff’s car he was about 100 feet west of the west curb line of Twenty-ninth Avenue, and that plaintiff was then about 150 feet north of the curb line of Judah Street. Each party was of the opinion that the other was exceeding the speed limit of twenty miles, but- each testified that approaching the intersection his car was traveling at a speed of twenty miles an hour or less. According to the plaintiff, he was about fifty feet from the intersection when he first observed the defendant, and the latter was then distant therefrom about 250 feet. He continued to observe the de