White v. Shepardson

[717]

CONREY, P. J.

The accident occurred at the intersection of two highways' near Azusa in Los Angeles County. The defendant was driving a Cadillac automobile going west on Fifth Street, and William F. White, now deceased, was driving a Dodge automobile going south on Los Angeles Street. The plaintiff, as administrator of the decedent’s estate, brought the action as permitted by statute, on behalf of the heirs at law, viz., the widow and children and said William F. White. Pursuant to the verdict of a jury, judgment was entered against the defendant, and he appeals therefrom.

At the time of the accident there were only five persons present. White was alone in the Dodge car. In addition to defendant Shepardson, in the other car, there were his wife, their daughter, Mrs. McCook, and their son, J. B. Shepardson. The evidence is sufficient to establish actionable negligence of the defendant. The questions open for discussion on this appeal relate to the defense of contributory negligence, which was duly pleaded by the defendant.

The plaintiff in presenting his evidence anticipated the contributory negligence defense by offering evidence for the purpose of proving that the decedent was not negligent in the driving of his automobile at the time and place of the accident. In addition to the circumstantial evidence that arose from the condition of the automobiles and of the street immediately after the accident, the plaintiff offered testimony of the plaintiff concerning the habits of decedent in relation to the manner of driving his car at the intersection in question, and at other places, prior to the time of the accident. The witness, being a son of the decedent, testified that he had at various times been present with decedent while the latter was driving his car over the intersection, and other intersections also, and that on those occasions his father drove slowly across the said intersections, and looked both ways. This evidence was received in the face of objections to the competency, relevancy and materiality of such evidence. The defendant, and Mrs. Shepard-son, and their son all testified to facts which were in themselves sufficient to establish negligence of decedent. The place where this event occurred is what is commonly known as a blind crossing. On each of the four corners there were