Himes v. Daniel

TAPPAAN, J.,

pro tem.

This is an appeal by the plaintiff from a judgment entered in defendant’s favor. The action is one for the recovery of damages for injuries alleged to have been sustained in a collision between an automobile, in which plaintiff was riding as a passenger and which was driven by plaintiff’s husband, and an automobile driven by defendant. The facts involved are few in number and only in one instance does there appear any material conflict in the evidence presented here. The accident, in which the injuries complained of occurred, took place on the Valley Boulevard, a highway which, near the point where the accident took place, runs in a general northeasterly direction. The boulevard during its course and for a short distance turns to the east and crosses the tracks of the Southern Pacific Railway, and then again turns north or northeast. The automobile, in which plaintiff was riding, was. proceeding northerly upon the boulevard, and had just crossed the railway tracks when the accident occurred. The night was clear, and the headlights on both

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automobiles were lighted and the view between the machines was unobstructed. Plaintiff and her witnesses testified that at the time they first saw defendant’s automobile, the machine in which they were riding was on the right-hand side of the roadway and near the edge of the pavement. The defendant’s automobile was at or near the turn in the highway, and some fifty or one hundred feet distant from them, and approaching at a high rate of speed upon their, or the south, side of the roadway. Plaintiff’s husband turned the automobile, in which she was riding, to the left and into the center of the roadway where the two machines collided. The right-hand sides of both machines struck. Defendant testified that he was upon the right-hand side of the roadway as he approached plaintiff’s machine and near the center line. That he was driving at about thirty-five or forty miles per hour. That plaintiff’s automobile was turned into the center of and across the roadway as he approached it. The trial court found that defendant was negligent, but that the negligence did not proximately contribute to the accident, and that the driver of the automobile in which plaintiff was riding was guilty of contributory negligence, which did proximately contribute to the accident.