Smith v. Pollard

TAPPAAN, J.,

pro

tem.

From a judgment in favor of plaintiff, defendant appeals. The accident, which is the basis of the action, occurred at the intersection of Union Street and Venice Boulevard in the city of Los Angeles. Plaintiff Bell, with plaintiff Smith as a passenger, was driving his automobile south upon Union Street, while defendant was driving in an easterly direction on Venice Boulevard. The two streets do not cross at right angles, but on the south side of Venice Boulevard, Union Street enters Venice Boulevard some thirty or forty feet to the west of where it enters on the north side of the boulevard. A traffic button is in the center of Venice Boulevard at a point in the middle of Union Street, where it enters from the south. Plaintiff Bell testified that he first saw defendant’s automobile some sixty feet away as he was turning the button in the center of Venice Boulevard, and that the front wheels of his machine were at the south curb line of Venice Boulevard when defendant’s automobile hit his automobile in the rear. Defendant’s automobile was traveling at a fast rate of speed, thirty-five to forty miles per hour, being the testimony of plaintiffs ’ witnesses.

Appellant’s first contention is, that plaintiff Bell was guilty of contributory negligence, and that such contributory negligence should be imputed to plaintiff Smith and bar his recovery as well as that of his coplaintiff. Appellant’s theory, as advanced here, is that a driver who fails to yield the right of way to the driver of another vehicle approaching

simultaneously

from his right is guilty of negligence as a matter of law. Section 131 of the California Vehicle Act (Stats. 1925, p. 412), in force at the time of the accident, provided as follows: “When two vehicles approach an intersection of public highways at approximately the same time, the vehicle approaching from the right shall have the right of way, provided such vehicle is traveling at a lawful speed.” The record fails to sustain appellant’s contention that this appeal presents a case of “simultaneous approach”. The only evidence in the record

[360]

on this subject is that plaintiff’s automobile was lawfully in the intersection and making the turn around the button when defendant’s car was sixty feet away, and, if the trial court believed plaintiffs’ witnesses, approaching the intersection at an unlawful rate of speed.