Clendenin v. Benson

THE COURT.

This action was brought to recover damages alleged to have been suffered by plaintiff Clendenin by reason of injuries to his automobile, it being alleged that the damage was caused by the negligence of defendants Blase Brothers & Co., a corporation; Robert F. Benson and Chester N. Weaver, individually and as copartners, and Noble Wheeler.

Plaintiff Hartford Fire Insurance Company alleged a cause of action under the theory of subrogation, claiming to have been the insurance carrier of plaintiff Clendenin, and to have paid him the sum of $1625 under the terms of his policy.

A jury having been waived the action was tried before the court, and upon its findings judgment was entered in favor of the. insurance company and against Blase Brothers & Co., for $1125, which amount the court found was the extent of the damage; further, that neither plaintiff take anything against defendants Benson, Weaver or Wheeler.

Defendant Blase Brothers & Co. filed a notice of appeal from the whole judgment, and alleged that the .finding that the damage was caused by its negligence is unsupported and that the court erred in admitting certain evidence over objection.

Plaintiff Clendenin, the owner of the automobile, placed it in the possession of defendants Benson and Weaver at San Jose for repairs. After certain work had been done defendant Wheeler, who was in the employ of the defendants last named, in order to test the work drove the car north along the public highway to a point near Alviso. Two trucks belonging to appellant were upon the same highway in that vicinity, one proceeding south and the other north, the latter preceding Clendenin’s automobile, which collided with the rear end of the north-bound truck. The trucks had passed each other shortly before the collision, and it was testified that as they passed the driver of the south-bound truck signaled the driver of the other truck, and that the latter suddenly stopped, whereupon the accident happened.

Defendant Wheeler testified that he was driving about 35 miles an hour, the distance between the automobile and

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the truck when the latter was in motion being between 200 and 300 feet. He further testified that the truck driver gave no warning signal, and that when he realized that the truck had stopped he applied his brakes, turned the automobile to the left, and that the two vehicles were about 60 feet apart when the truck came to a standstill; further that he was unable to turn the automobile sufficiently to avoid the collision, and consequently the right rear door of the automobile came into contact with the left rear corner of the truck, causing damage to the automobile. The latter vehicle overturned and came to rest at a point between 35 and 50 feet from the place of the collision. The untraveled portion of the highway was 16 feet in width. Photographs taken after the accident show that the truck when stopped occupied at least a third of the main traveled portion, and that there was ample space on both sides of this portion of the highway for the parking of vehicles.