Swartz v. Acme Express & Drayage Co.

NOURSE, J.

Plaintiffs sued for damages for personal injuries. The cause was tried before a jury, which returned a verdict for plaintiffs for five thousand dollars. Prom the judgment on the verdict the defendants appeal on typewritten transcripts.

Mrs. Swartz was driving her automobile in a westerly direction along the public highway between Walnut Creek and Lafayette, in Contra Costa County, when, in approaching a curve on the highway, she collided with a trailer attached to a truck operated by defendants and which was at the time being driven in an easterly direction along the same highway. The left wheel of the trailer struck the left front wheel of plaintiffs’ car in such a manner that the steering-gear was jammed. The Swartz car then proceeded slowly across the left-hand side of the highway a distance of about thirty-five feet to the edge of a creek, paused momentarily, and then plunged down to the stream bed, where it turned on its side and where Mrs. Swartz received the injuries complained of. The negligence charged to the defendants is the operation of the truck at an excessive rate of speed—about twenty-six miles an hour; the careless attachment of the trailer which permitted it to swing to the left on the curve; and the driving of the truck too near the center of the highway. The defendants denied all these charges of negligence and set up the contributory negligence of Mrs. Swartz, consisting in her driving with one hand and with eyes averted from the highway while giving attention to her small child seated in the rear of the automobile, and in her failure to apply either her foot or emergency brake after the collision or to take any other means to prevent her car from going into the creek bed.

On the issue of defendants’ negligence the evidence was conflicting, but sufficient appears to support the jury’s verdict adverse to the defendants. The first charge of contributory negligence was denied in a measure by Mrs. Swartz and the jury apparently accepted her testimony. The second charge comes directly from her own testimony and is

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without any contradiction in the record.. No special issue was made of it and no special instruction was requested by the defendants. The point comes to us on this appeal to determine whether the admitted facts constitute contributory negligence as a matter of law because, if the issue is one of fact only, the verdict of the jury must stand unless the record presents reversible error. Thus, if the verdict had been for the defendants the evidence of Mrs. Swartz’s negligence in this respect would have been sufficient to sustain it, but with the verdict for plaintiffs we must assume that the jury found that Mrs. Swartz was not guilty of a failure to use ordinary care under the circumstances. Therefore, the question is, Does the admitted conduct constitute contributory negligence as a matter of law? Ordinarily, in cases of this character, the language of