Depaoli v. Claus

THE COURT.

This action was brought to recover damages for injuries to and loss of use of an automobile truck. The defendant filed a cross-complaint for damages for personal injuries and for injuries to his automobile. The litigation grew out of a collision between the vehicles mentioned at a point on the main San Jose-San Francisco highway, which will be hereinafter referred to as the highway, near its intersection with Euclid Avenue in San Bruno. It was stipulated that if plaintiffs were entitled to recover, such recovery should be in the sum of $522.02 for repairs to the truck with whatever amount they might prove they were damaged by loss of its use; further, that if the defendant was entitled to a verdict he should recover $400 as special damages with whatever general damages, including loss of time, he might prove. A jury found the verdict in favor of plaintiffs for $600. A motion for a new trial was denied, and defendant has appealed from the judgment entered upon the verdict. He contends that the verdict is unsupported; that the court erred in denying his motion for a new trial, in certain of its rulings on the admissibility 'of evidence, and in its instructions to the jury.

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The truck, which was 24 feet long, weighed with its load about eight tons. It was equipped with acetylene headlights, which were attached to the dashboard between five and six feet from the ground. The hood, the radiator, the frame and the bumper all protruded beyond the dashboard. The truck was also equipped with two oil lights in the rear. The automobile was a model T Ford sedan, and was being driven south along the highway. The collision happened at about 1:45 A. M. on December 4, 1928, and there were no eye-witnesses except the drivers of the respective vehicles. The driver of the truck testified that he drove the same with all the lights burning, from a private driveway on the west to the east side of the highway, his intention being to proceed north to San Francisco. The highway at that point is 40 feet wide, and is divided into four traffic lanes, marked on the pavement, each 10 feet in width, the two adjoining the edges of the pavement being the slow traffic lanes and the two in the middle of the highway being used for fast traffic. The truck driver further testified that he stopped before attempting to cross the highway and looked to the north and south. There were no vehicles approaching from the south, but he saw defendant’s automobile coming from the north about 600 feet away. He then crossed to the east side of the highway and proceeded north. When the automobile, which, according to this witness, was traveling between 40 and 50 miles per hour, reached a point about 100 feet north of the truck, it turned to its left across the highway and struck the front end of the truck, tearing off the bumper, bending the front portion of the frame and injuring the motor. According to the defendant the automobile was proceeding along the extreme westerly portion of the pavement at a speed of about 20 miles per hour, when the truck suddenly appeared, and the collision occurred before he had an opportunity to apply his brakes or change his course. According to the testimony of a traffic officer who arrived on the scene about 15 minutes after the collision he found the truck facing north, about midway between the east line of the slow and the west line of the fast traffic lane on the east side of the highway, and the automobile off the pavement to the east and about eight feet from the truck. The officer also testified that he found broken glass on both sides of the middle line of the pavement and that