Dewees v. Kuntz

[666]

BURROUGHS, J.,

pro tem.

This is an action for damages for personal injuries.

At a former hearing of this case the conclusion was reached that the negligence of the defendant was the proximate cause of the accident which resulted in the injuries to the plaintiff, which is the subject matter of this suit.

After a more mature consideration we are of the opinion that we failed to give due weight to the close proximity to each other of the several automobiles and the narrowness of the road over which they were traveling.

The evidence discloses that the plaintiff and defendant are mother and daughter, respectively. At the time of the accident they were returning from a rodeo being held near a place called Squaw Valley to their home in the city of Fresno. The defendant was the owner of and operating the automobile, a Chrysler roadster. The plaintiff occupied the right side of the driver’s seat. The road was an ordinary unpaved mountain grade, and, where the accident occurred, the traveled portion thereof was twelve feet wide. On the outside there was an extension of the traveled portion of the road which was composed of small rock and boulders and soft dirt on top. The defendant was familiar with the road, having traveled over it many times. The evidence shows that defendant was traveling downgrade on her side of the road, and on rounding a curve she saw ahead of her a parked automobile which was on the inner side of the road and facing toward her. When she first saw the car it was between twenty and thirty feet from her. 'She had ample room to pass this car. After rounding the curve and observing the parked car, almost at the same time she saw another car coming up the grade behind the parked car. The approaching ear turned to pass the parked car and entered the defendant’s side of the road. The defendant’s car was almost at the front of the parked car and as the approaching car entered defendant’s right of way, defendant turned to the right 'to pass this on-coming car and when her car entered the soft dirt both right wheels sunk into it and the car toppled over on its right side.

Defendant also testified that she could stop her car in about twenty-five feet, but that she was not that distance