Toby v. Hubbard

BARNARD, P. J.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action for damages growing out of a collision between two automobiles. As the respondent was driving his machine along his own right-hand side of a paved highway, having recently entered the same, he observed another automobile, driven by the appellant Hubbard and owned by the other appellants, approaching on its left-hand side of the highway and apparently passing another car. The respondent slowed down, apparently almost to a stop, to allow the approaching car to cross over to its proper side of the highway, but, instead .of so crossing over, that car maintained its course on its extreme left-hand side of the road and struck the respondent’s car head-on.

The principal point raised by appellants is that the respondent was guilty of contributory negligence, as a matter of law. In support of their contention they rely entirely upon the respondent’s own testimony, which they thus summarize : “On the 24th day of April, 1930, he had a collision with another automobile on the southerly edge of the Town

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of Fallbrook, when he had. come from Live Oak Park; that he entered the paved highway at the intersection known as the Live Oak intersection after he had made a boulevard stop; that he very cautiously approached the intersection from the east going west; that this intersection is a blind intersection, and is slightly down grade and in his opinion a very dangerous one for traffic that might be coming onto the highway from the Live Oak Road; that his car was in low gear; that he continued in low gear and turned north onto the highway and shifted into intermediate when he saw two cars coming; that the cars in his judgment were some four hundred or more feet from the intersection; that both ears were going south, one being on his side of the highway and nothing to obstruct that car from coming across to its own side of the highway; that he stepped his gear up with intentions of going into high; that he continued to watch the car and saw that it continued, even though it had gone considerably ahead of the other car on plaintiff’s side of the highway. He took his foot off the accelerator, slowed down and then realized that this automobile was going to hit him; that he had slowed his car down at that time to such a slow speed that he could not take the shoulder of the road; all that he had time to do was to put his foot on the clutch and the brake and wait for the shock.”