Jewell v. Bell

DOOLING, J.,

pro tem.

This is an action by the surviving husband and minor child of Phyllis Edna Jewell for her death which was caused by a collision between an automobile in which she was' riding as a guest and a truck and trailer being operated by appellant Sauls in the business of the other appellants. The jury brought in a verdict against appellants and in favor of Wulbern, the driver of the automobile in which Mrs. Jewell was riding.

Appellants contend that there is no evidence sufficient to support the verdict against them.

The truck and trailer, which had been proceeding southerly on the highway between San Francisco and San Jose, were parked upon the paved portion of the highway at a

[684]

point slightly northerly of the northerly limits of the town of Belmont at the time the collision occurred. There was a dirt shoulder at this point wide enough to have permitted the parking of these vehicles entirely off the paved portion of the highway." While the truck and trailer were so parked, and some time between 10 and 11 o’clock P. M., the car driven by Wulbern proceeding southerly collided with the rear end of the trailer and as a result of injuries received in the collision Mrs. Jewell died.

Section 136 of the California Vehicle Act prohibits the-parking of any motor vehicle upon the paved portion of any highway, outside of a business or residence district, when it is practicable to park such vehicle off of the paved portion, but contains the following exception:

“The provisions of this section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a public highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position.”

Appellant Sauls, the driver of the truck and trailer, testified that on the night in question when he was about the point of the accident his motor back-fired a few times and then died, bringing truck and trailer to a stop; that he was unable to start the motor again and upon investigation found that the strainer on his gas feed was clogged with lint and dirt; that he disconnected the strainer and cleaned it out and had just finished connecting the gas line again when the collision occurred. Since Sauls was the only person present at the time, this testimony could not be and was not directly contradicted. This being so, appellants claim that since it appeared without contradiction that the truck and trailer were disabled to such extent as to make it impossible to avoid stopping and leaving them on the paved portion of the highway the case falls within the exception of section 136 of the California Vehicle Act above quoted and the finding of the jury that Sauls was negligent is without support in the evidence.