Myers v. Rovai

PLUMMER, J.

Plaintiff began this action for the purpose of recovering of and from the defendants the sum of $1,325 damages alleged to have been suffered by the plaintiff for and on account of a certain automobile collision occurring on the twentieth day of July, 1921, between an automobile belonging to the plaintiff and driven by a son of the plaintiff and a track belonging to the defendants and driven by the defendant M. Rovai. The case was tried before a jury, the defendants had judgment and the plaintiff appeals.

It appears from the complaint that on the said twentieth day of July, 1921, an automobile belonging to the plaintiff was being driven by Sidney Myers, a minor son of the plaintiff, in a southerly direction on the public highway between Pepperwood and Englewood in the county of Humboldt; that as said automobile proceeded along said highway it reached a point thereon where the road makes a curve of about thirty-four degrees; that at said time the defendants were driving a truck in a northerly direction on said highway and at a point approximately midway on said curve the automobile and truck collided. The force of the collision practically demolished the automobile and also inflicted some minor injuries upon the plaintiff’s son. The defendants, in their answer, among other things, pleaded contributory negligence on the part of the plaintiff.

Upon this appeal the appellant urges the insufficiency of the evidence to sustain the verdict, errors in the admission of testimony, and errors in the instructions given by the court to the jury.

There is a sharp conflict in the testimony, especially that relating to the speed at which the plaintiff was driving immediately preceding the time of the collision. The plaintiff’s son testified that he was driving at between twenty and

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twenty-five miles an hour when he first saw the truck at a place about thirty-five feet distant from the point of the collision. Other witnesses riding in the automobile testified that it was traveling at about the same rate of speed. Other witnesses in the automobile did not estimate the speed. The driver of the truck and lookout, who was riding on the truck, and some of the witnesses testified that the plaintiff was going at a very rapid rate of speed. Some of the witnesses testified that when the automobile reached the curve it was running at a rate of speed between forty and forty-five miles an hour. There is, also, sharp conflict as to the exact location of the automobile and the truck at the time of the impact and, also, whether there was or was not room to have passed the truck without injury. There was, also, testimony that the automobile was being driven as such a high rate of speed over the graveled road that it was swaying from side to side. The testimony of several of the witnesses, among them Vada Myers, Harold E. Sawyer, and others, was to the effect that willows and small trees growing alongside the road at the point of the curvature therein obstructed the view of the highway so that an approaching automobile could be seen for only a short distance. Other witnesses testified that from a point along a line of the center of the highway the view was unobstructed for a distance of several hundred yards or more. It appears from the testimony that the trees and willows along the curve in the road had been removed since the time of the collision, which may or may not account for some of the discrepancy in the testimony. Whatever the facts may have been at the time of the trial, there is sufficient testimony in the record from which the jury was entitled to conclude that at the time of the collision the view of the driver of the truck and of the driver of the automobile rounding the curve in question was more or less obstructed, and such as to come within the purview of section 22 of the Motor Vehicle Act (Stats. 1919, p. 220) as it then read. It would serve no useful purpose to set forth the testimony, and all that needs to be said is that it is conflicting in this case and if the jury believed the testimony offered on the part of the defense, the verdict is amply sustained, even though it be true that the testimony offered on the part of the plaintiff would, also, have sustained a verdict had the jury found in his favor.