Bauman v. Edgar

NOURSE, J.

Plaintiff recovered judgment for $775 as damages for injuries received in a collision with the defendant’s automobile. The cause was tried before the court, sitting without a jury, and all the allegations of negligence appearing in the plaintiff’s complaint were found to be true, while the denials and allegations in defendant’s answer were found untrue. The appeal is taken by the defendant from the judgment and is presented upon the judgment-roll and a bill of exceptions.

The only ground urged by the appellant is that the trial court erred in holding that the plaintiff was not responsible for the collision ^because he had the last clear chance to avoid it.

The facts of the ease material to the appeal are that at about 7:30 A. M. the respondent was driving his automobile east on Fremont Avenue, in the county of Santa Clara, crossing the intersection with Saratoga Road, which road runs north and south. The two roads are paved and are of about equal width. At the same time the appellant was driving his automobile along Saratoga Road approaching from the south and crossing the intersection of Fremont Avenue going north. The plaintiff approached the intersection traveling at the rate of about seven to ten miles an hour, while defendant approached the intersection going at a rate of about thirty-five to forty miles an hour. The vision of both drivers was obscured by a house and a row of trees standing on the southwest corner of the intersection. When the plaintiff arrived at a point twenty-five feet west of the westerly line of Saratoga Road he could see south on Sara-toga Road a distance of about thirty feet, and as he looked in that direction he was unable to see defendant as the latter had not yet come within his range of vision. He first saw defendant when the latter was approaching him at a high

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rate of speed and about twenty feet distant. Plaintiff continued to cross the intersection past the median line of the intersection running north and south before defendant’s car arrived at the southerly line of the intersection. The defendant continued on his course across the intersection and struck the car of the plaintiff toward the rear, just a little back of the center. The collision was with such force that plaintiff’s car was thrown thirty feet from the point of collision and came to a stop in a ditch along the side of the highway, having been turned completely around from the direction in which it was proceeding at the time of the collision. The testimony regarding the speed at which the defendant was proceeding is in some conflict, but there is uncontradicted testimony to the effect that with his brakes set and his wheels completely locked his car skidded a distance of eighty-five or ninety feet along the highway before it came into contact with plaintiff’s car.