Traynor v. McGilvray

RICHARDS, J.

This appeal is from a judgment based upon a verdict in favor of the defendant in an action for damages for personal injuries received by the plaintiff as the result of a collision between the automobiles of the respective parties which occurred on the afternoon of January 18, 1917, upon the state highway, between Burlingame and Millbrae, in San Mateo County.

The defendant was driving his car, a sedan, southward from San Francisco on his way to San Jose. The plaintiff was driving her car, also a sedan, northward from Burlingame on the way to San Francisco. A short distance ahead of her was a wagon, and just behind it another car, a Metz, both proceeding northward. The Metz car turned outward toward or upon the center of the road in order to pass the wagon, and the plaintiff at or about the same moment attempted to pass both the wagon and the Metz car. The approaching defendant first observed the wagon and the cars behind it when about 'five hundred feet away,

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and saw the Metz car turn outward in its attempt to pass the wagon, but, according to the defendant’s assertion, did not observe the plaintiff’s effort to pass both the Metz car and the wagon until so short a distance away as to render a collision between his own car and the car of the plaintiff inevitable. The testimony is quite conflicting as to the respective speeds and also as to the precise position of the automobiles of the respective parties at and immediately before the time of the collision; but the evidence is practically conclusive that at the precise moment of collision the plaintiff’s car was upon the left side of the highway, and the defendant’s car was well over toward the edge of that side of the highway and in the dust of that portion thereof which was unbituminized. The jury returned its verdict in favor of the defendant.

The appellant’s first contention upon this appeal is that the trial court committed reversible error in its admission in evidence of the testimony of two witnesses, Mrs. Margaret Warner and her daughter, Miss Elsie L. Warner, called by the defendant. The testimony of these two witnesses was to the effect that they were standing by the side of the highway a short distance north of Burlingame and about the distance of a city block away from the point of collision, which point, however, they were unable to see, for the reason that there is a slight elevation in the road between their points of vision and the point of impact. They were near enough, however, to hear the sound of such impact, and their testimony to which the plaintiff’s objection went was to the effect that at the time the plaintiff passed the point where they were standing and went on up the incline in the road her car was driven very rapidly and, as the witnesses described it, “was running from one side of the road to the other, zigzagging across the road.” The plaintiff objected to the defendant’s offer to make this proof, and also objected to the witnesses’ testimony when presented, upon the ground that it was too remote, for the reason that it referred to the conduct of the plaintiff and the action of her car at a time prior to and at some considerable distance from the point of collision, which point was beyond the witnesses’ visions.