Shelton v. Ackerman

THOMPSON (R. L.), J.

This is an appeal from an order granting a new trial in an automobile casualty case.

[680]

The respondent brought suit for damages for the negligent billing of her husband resulting from a collision of automobiles which occurred at an intersection of streets in Red Bluff. The jury rendered a verdict in favor of the defendant. A new trial was granted on the ground of insufficiency of the evidence to support the verdict and judgment. " The negligence of the defendant, which consisted in driving his machine on to the intersection of the streets at a high rate of speed, is not disputed. The sole question involved on this appeal is whether the deceased was guilty of contributory negligence as a matter of law.

The appellant contends the evidence shows without dispute that the deceased failed to look to his right before entering the intersection, and that he was therefore guilty of contributory negligence as a matter of law, so as to preclude the respondent from recovery.

All of the evidence upon this subject, which the record discloses, appears as follows: Mrs. McKay, who was also summoned as a witness for the defendant, testified in behalf of the plaintiff that she was sitting on the front porch of her home which is situated near the corner where the accident occurred, and saw both machines just prior to the collision. She said: “Mr. Shelton was driving at a moderate rate of speed.” She testified: “Mr. Ackerman’s car was coming at a high rate of speed.” Another witness testified that the defendant’s car “roared by” on its way to the intersection. Mrs. McKay further said regarding the conduct of the deceased just before he reached the intersection: “I noticed that he did not turn his head one way or the other, so I thought 1 well, I will turn my head and look’. And I looked . . . south and Mr. Ackerman’s car was coming at a high rate of speed. . . . Mr. Shelton kept on going, he didn’t slow down nor did he speed up, he just kept at the same rate, he stayed just that way, sitting at the wheel, both hands on the wheel, looking straight ahead. . . . Mr. Shelton didn’t give any signal, never took his hand off the wheel, never turned his head, was going straight ahead. . . . Now, if it were possible for him to see out of the corner of his eye, he might have done that, but he did not turn his head one way or the other.”