Levy v. Berner

THE COURT.

The above actions were brought to recover damages for personal injuries growing out of the same automobile accident. The causes were tried together and are presented here upon the same transcript and briefs.

The accident occurred on March 27, 1929, at 9:55 o’clock A. M. The plaintiffs, who were riding in a Chevrolet automobile, were proceeding northerly along Nineteenth Avenue between Judah and Kirkham Streets in San Francisco, and the defendant was operating a Buick automobile in the opposite direction along the same street. Plaintiff Albert Levy owned and was driving the Chevrolet car, and plaintiff Joseph Levy was a passenger therein. There was a collision between the two automobiles, as the result of which each plaintiff suffered physical injuries and the Chevrolet automobile was damaged.

The complaint in each action averred negligence on the part of the defendant, which he denied; and contributory negligence was pleaded as a defense in both cases. Verdicts were returned as follows: For Joseph Levy, $1,000, and for Albert Levy, $3,000. New trials were denied, and defendant has appealed from each judgment.

Since the appeals were taken defendant has died, and his executors have been substituted as the appellants herein.

As grounds for the appeals it is claimed that the court

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erred in its instructions to the jury and in admitting certain facts in evidence, that the conduct of the court in the examination of a certain witness was prejudicially erroneous, and that the damages awarded were excessive and the result of passion or prejudice.

According to tiie plaintiffs the course of their automobile was north along Nineteenth Avenue, east of the center line of the avenue and about four feet from the easterly curb. They testified that the defendant swerved from his course, which was south along the same avenue, and a collision occurred. The defendant testified that he turned to his left in an attempt to overtake and pass a ear traveling ahead of him but that the collision occurred west of the center line of the avenue. Other testimony, however, tended to show that defendant’s car immediately before the collision was moving in a southeasterly direction on the east side of the avenue, and that the collision occurred at a point five or six feet from the easterly curb. While testimony tending to impeach plaintiffs’ version of the affair was produced, the weight to be given thereto was a question for the .jury, and we are satisfied that they were justified in concluding from all the evidence that the accident happened as described by the plaintiffs and was due to the fact that the defendant was driving on the wrong side of the avenue.