Brewer v. Benton

[113]

THOMPSON (R L.), J.

This is an appeal from a judgment for damages to the plaintiff’s automobile sustained by coming in contact with an electric power pole Avhen his ear was crowded from the higlrway by the passing of defendant Benton’s machine. A reversal of the judgment is sought on the sole ground that the trial court failed to adopt findings upon the issue of contributory negligence.

The plaintiff was driving his automobile along the highAvay from Sacramento to Rio Linda. It was a narrow roadway. The paved portion Avas but ten feet in width with a five or six foot shoulder on either side. The plaintiff was traveling about thirty miles an hour. The defendant Benton was driving his Studcbaker car which approached from behind the plaintiff’s machine. After first passing an intervening Ford coupe, the defendant claims to have sounded his horn and then attempted to pass the plaintiff’s car by traveling along the extreme left-hand portion of the highway Avith his automobile running almost entirely on the dirt shoulder of the road. He admits traveling thirty-six or thirty-eight miles an hour. Both the plaintiff and his companion Avho sat by his side testified that the defendant did not sound his horn and that he Avas traveling forty or forty-five miles an hour. The defendant testified that as his ear reached a point opposite the plaintiff’s machine the front wheels of his' automobile struck a little trench across the roadway and that it Avas suddenly thrown toward the plaintiff’s machine. He said: “There is a little drain over there, probably three or eight inches (wide), and when I passed him the rear end of my car gave a SAving like (toward his ear).” Both the plaintiff and his companion testified that they Avere traveling about thirty miles an hour on the right-hand side of the roadway, and heard no horn, but suddenly discovered the defendant’s car when it was nearly opposite their car; that it was traveling at a rapid rate of speed estimated at forty or forty-five miles an hour and that it swerved and came at an acute angle directly toward their car; that in order to avoid a collision it was necessary for the plaintiff to turn his car off of the highway entirely ; that in doing so, he lost control of the machine and it ran through a ditch Avhich paralleled the highway and collided with a telephone pole, seriously damaging the ear.