Villegas v. Strohm

MR. JUSTICE Pro Tem. TUTTLE Delivered the Opinion of the Court.

This is an action for damages arising out of a collision between plaintiff, a bicyclist, and defendant’s motor-truck. A verdict in the sum of $3,000 was rendered for plaintiff by the jury, and the appeal is prosecuted from the judgment.

Plaintiff, a minor, was riding his bicycle along Main Street, in the town of Campo Seco. The driver of defendant’s truck backed out of an alley which intersected Main Street, and struck plaintiff, who was severely injured.

Appellant contends that the complaint does not state a cause of action in that it is not alleged therein that the accident occurred upon a public highway. The objection is untenable. The second paragraph of the complaint alleges:

“That on the 16th day of February, 1929, at or about the hour of 2:15 o’clock p. m. of said day said plaintiff, Victor Villegas, was riding a bicycle in a southwesterly direction on Main Street, in the Town of Campo Seco, County of Calaveras, State of California, which said roadway and street is and then was a public highway and thoroughfare in the said County of Calaveras, dedicated and used for travel and traffic of various kinds and nature, including the right to ride a bicycle thereon.”

The third paragraph alleges that at said time and place the driver of the truck negligently drove his truck so that it was caused to strike plaintiff, setting forth all the details.

The only possible inference which could be drawn from the pleading is that the accident occurred upon Main Street.

It is next contended by appellant that the evidence shows that the accident occurred upon the property of defendant, and not upon a public highway. He introduced evidence of a very unsatisfactory character, which tended to prove that defendant’s property line extended ten feet out into the traveled portion of Main Street, defendant being an

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abutting owner. It appears that the accident occurred upon the strip of property mentioned. This being the fact, it is argued that plaintiff was a trespasser, and not entitled to the benefit of the California Vehicle Act. This act, at the time of the accident and also at present, contains the following provision: