Bleumel v. Kroizy

California Court of Appeal Apr 23, 1931 No. Docket No. 7135.Published

Before: Nourse

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Holding. The court held that the evidence supported a finding of joint and concurrent negligence by both defendants in a racing incident, and that the trial court did not err in its jury instructions or in allowing the jury to review the defendant's transcribed testimony.

Issues

Whether the evidence was sufficient to establish the negligence of the defendant as a proximate cause of the plaintiff's injuries.
Whether the trial court's jury instructions regarding joint and concurrent liability were legally correct.
Whether the trial court erred in permitting the jury to take the defendant's transcribed testimony into the jury room.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The unescapable conclusion to be drawn from the evidence is that the two defendants were racing each other with a total disregard for the safety of the many other autoists using the highway.”

“We are wholly unable to see how this appellant could be prejudiced by having his testimony alone sent to the jury-room”

[586]

NOURSE, P. J.

Plaintiff' sued for damages resulting from an automobile collision. The cause was tried with a jury and resulted in a verdict for plaintiff against defendants Kroizy and Johnson for $6,000. The trial judge reduced the verdict to $3,500 and entered judgment in that amount. Each defendant has taken a separate appeal. The appeal of Kroizy alone is submitted for decision.

There is no material conflict in the evidence. Plaintiff was riding as the guest of defendant Kroizy, who was operating his car along the main highway running from Tracy into Livermore on the afternoon of Sunday, August 12, 1928. The defendant Johnson was operating her ear along the same highway at the same time. Both cars were proceeding westerly toward Livermore in the midst of the usual heavy Sunday afternoon traffic which- was chiefly going in the same direction. During the last few miles before the accident the Kroizy car had passed the Johnson car twice and the Johnson ear had passed the other once. When approaching a curve in the highway the Johnson car attempted to pass the Kroizy car again when the latter was going at a speed of thirty-four miles. Mrs. Johnson sounded her horn, but, as she came alongside of the other car, Kroizy “speeded up” and the two cars raced side by side for about three hundred feet when the Johnson car struck another car coming in the opposite direction and all three cars were thrown off the highway.

The unescapable conclusion to be drawn from the evidence is that the two defendants were racing each other with a total disregard for the safety of the many other autoists using the highway. The negligence of both defendants is not disputable and that the negligence of both proximately contributed to the injuries of plaintiff there can be no doubt. Kroizy was negligent in refusing to slow down when the other cars attempted to pass him and in slowing down later when the other car slowed and attempted to cut in behind him.

The criticism of certain portions of the instructions carries no merit. The jury was advised that it was not necessary to find both defendants guilty of negligence proximately contributing to the injury; that against Kroizy alone it was necessary to find his negligence alone caused

[587]

Bleumel v. Kroizy

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NOURSE, P. J.

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