Shamlian v. Minardi

[496]

SCOVEL, J.,

pro tem.

On December 14, 1926, a collision occurred at an intersection of public highways in Fresno County between a truck driven by defendant and appellant T. A. Minardi and a Model T Ford automobile driven by A. T. Shamlian. Shamlian was driving north on a paved highway and Minardi was driving east on a dirt road intersecting the highway. Shamlian was killed as a result of the collision, and this action was brought by his heirs at law for damages occasioned by his death. Judgment was entered in favor of plaintiffs in the lower court and from this judgment defendant appeals. The trial court found that appellant negligently and recklessly drove and operated his truck on approaching and driving into the intersection of the road and highway and that by reason thereof his truck collided with the automobile of decedent, thereby causing his death. Appellant attacks this finding of the trial court as not supported by the evidence.

Section 131 of the California Vehicle Act, as amended in 1925 (Stats. 1925, p. 412), subdivision (a), which was in effect at the date of the collision, provided as follows: “When two vehicles approach an intersection of public highways at approximately the same time the vehicle approaching from the right shall have the right of way, provided such vehicle is traveling at a lawful speed.”

Therefore deceased, being on appellant’s right, was entitled to the right of way through the intersection if the two vehicles approached the intersection at approximately the same time and if deceased was traveling at a lawful rate of speed. Ozanna S. Shamlian, wife of decedent and a passenger in his automobile at the time of the collision, testified as follows:

“Q. Did you notice anything about the speed of the car (referring to the Ford) as you came up close to this intersection ?

“A. He was slowing it down. . . .

“Q. Mrs. Shamlian, you have testified that the car was slowing down as you approached and got close to this intersection. State what, in your best recollection, was the speed of that car that you were in,, as it went into and started across that intersecting road? What was the speed you were traveling at?