Kellner v. Witte

MARKS, J.

Lotta L. Kellner is the widow and Jessica R. Kellner is the daughter of Louis Kellner, deceased. They brought this action to recover damages for his death which resulted from a collision between an automobile which he was driving in a southerly direction on the state highway and a truck belonging to the appellant August Witte and driven by his employee, Joseph J. Seale, in a northerly direction on this highway. The accident occurred about 18 miles north of the city of Bakersfield. The highway rises on a slight grade for several hundred feet northerly from the point of impact. At that place the paved portion of the road was 30 feet in width with a dirt shoulder on each side.

The accident happened about 4 o’clock on the afternoon of August 25, 1931. The day was clear. J. A. Root was driving northerly on the highway with Ms wife and daughter in a coupe at a speed of between 25 and 30 miles an hour. His left wheels were about four feet easterly from the center

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line of the highway. The truck, driven by Seale, gradually overtook the Root automobile and tried to pass. It could not make a speed in excess of 35 miles an hour. During his attempt to pass the Root automobile the Kellner car and the truck came into collision.

Appellants rely on two grounds for a reversal" of the judgment. First, that Kellner was guilty of contributory negligence; and second, that the trial court erroneously overruled their objections and admitted in evidence statements of Seale as to how the accident occurred, without instructing the jury that the statements could not be considered as evidence against Witte, who was not present when they were made.

They rest their claim of contributory negligence on the part of Kellner upon three grounds: First, that he was driving at a high rate of speed and in excess of 45 miles per hour; second, that he was driving near the center line of the road and not near his right-hand edge of the highway; and third, that he did not maintain a lookout for obstructions ahead.

As is usual in cases of this kind, the evidence and reasonable inferences to be drawn from it are conflicting. There is ample evidence in the record to sustain the conclusion that Kellner was guilty of negligence which directly and proximately contributed to his injury and death, had the jury so found in reaching its verdict. However, as the jury reached a contrary conclusion, it is only necessary for us to determine whether there is any evidence to support its implied finding that the negligence of Kellner did not contribute to the accident and his subsequent death. In discussing this phase of the case we will only summarize such evidence as tends to support this finding of the jury.