Nelson v. California Construction Co.

CAMPBELL, J.,

pro

tem.

In this action respondent sought judgment for personal injuries and property damages alleged to have resulted from the negligence of defendant. The case was tried before the court without a jury. Judgment was rendered for respondent. The facts are briefly summarized as follows: Respondent and his family were proceeding southerly on the Golden State highway between the towns of Tipton and Pixley, in Tulare County, California. He reached a place on the highway where it was in process of being widened and resurfaced. There was a header-board on the east side of the pavement, flush with the old paved part of the highway. On the west side of the highway there was a trench about, four to six inches deep and four feet wide, and a header-board placed on the west

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erly edge of this trench. On this particular morning the surface of the highway was damp. A white line marked the center of the highway. 'Appellant’s driver, at the time of the collision, was driving an empty water tank-truck northerly on the highway. He was being followed by a Studebaker automobile. At the point where the collision occurred the right rear wheel of respondent’s car slipped into the trench and caused it to veer sharply to the left, striking the Studebaker automobile and causing the damage. Appellant contends that there are certain disputed questions of fact, to wit: (1) the width of the paved portion of the highway, (2) the speed of Nelson’s car, and (3) the position of appellant’s ear on the highway with relation to the center line thereof.

The evidence shows that the highway wás approximately sixteen feet six inches wide at the place of the accident, and various witnesses fixed the speed of respondent’s car from twenty-five to forty miles an hour. All the witnesses, save appellant’s driver, are agreed that appellant’s truck was being driven about a.foot or a foot and a half to the left-hand side of the center of the highway. By the findings, all of the so-called disputed facts were resolved against appellant by the trial court, either directly or impliedly.

Appellant contends that the trial court erred in finding negligence on the part of appellant’s driver. Various witnesses testified as to the width of the truck, and estimates were placed from five and a half to eight feet in width. The evidence shows that appellant’s truck held steadily to its course with the left wheels from a foot to a foot and a half to the left of the center line of the pavement. In attempting to pass the truck, the right rear wheel of respondent’s automobile dropped over the west edge of the pavement. The car went out of control and ran diagonally across the pavement and collided with the automobile which was following the truck, with disastrous results to respondent and his family. The evidence shows that there was no reason why appellant’s truck should have been on the wrong side of the highway.