Gilmore v. Caswell

Action by plaintiff for personal injuries alleged to have been sustained by him for and on account of a certain automobile collision due to the alleged negligence of the defendant and on an assignment for damages to the automobile in which the plaintiff was riding. It appears *Page 301 from the transcript that on or about the seventh day of October, 1922, the plaintiff was a passenger in a certain automobile, being driven in an easterly direction by one Clarence Buthenuth upon a certain main public highway in the county of San Joaquin, leading to the town of Modesto, at a point on said highway where it is intersected by a certain other highway known as and called the Atlanta-Ripon road. The complaint sets up two causes of action: first, for the injuries sustained by the plaintiff; secondly, for damages to the automobile in which the plaintiff was riding in the sum of $423.50, alleged to have been assigned to the plaintiff by the owner of the automobile in which the plaintiff was a passenger at the time of the injury. On the part of the appellant it is insisted that the testimony shows that the injuries received by the plaintiff were due solely and exclusively to the negligence of the owner and driver of the automobile in which the plaintiff was a passenger. On the part of the respondent it is contended that the injuries received by the plaintiff were due exclusively to the negligence of the defendant and that in any event, if the plaintiff was also negligent, the plaintiff not having anything to do with the control of the automobile in which he was riding would nevertheless be entitled to recover. The action was tried before the court without a jury. On the conclusion of the trial the court made its findings of fact and conclusions of law and awarded judgment to the plaintiff on the first cause of action in the sum of $512.40 and upon the second cause of action, to wit, for damages to the automobile in which the plaintiff was riding in the sum of $423.50.

So far as this appeal is concerned upon the question of damages to the plaintiff for personal injuries sustained by him, and as to the liability by the defendant, we do not need to inquire as to whether or not the owner and driver of the automobile in which the plaintiff was riding was or was not also careless and negligent or whether his negligence concurred in causing the injuries to the plaintiff, for, as stated above, if the defendant's negligence concurred in causing the injuries and the injuries would not have been inflicted had the defendant's negligence not so concurred, then and in that case the judgment for the injuries sustained by the plaintiff must be affirmed. *Page 302

Without reciting the testimony, it is sufficient to state that the testimony of the defendant as well as the testimony of Clarence Buthenuth, of Chester Mello and George C. Buthenuth all show that the defendant was driving a car unequipped with proper brakes, that is, that the brakes upon the car being driven by the defendant were so defective that they offered practically no resistance to its momentum and that if the car had been equipped with proper brakes, in view of the speed at which the defendant claimed he was driving for a few moments preceding the collision, the application of the brakes would have sufficed to avoid the collision.