Petroff v. Nunes

THOMPSON (R. L.), J.

This is an appeal from an order granting a new trial in the above-entitled consolidated actions after a judgment in favor of the defendant which was rendered in an automobile casualty.

On December 28, 1927, at 11 o’clock in the forenoon, the defendant was driving his Essex automobile easterly along the public highway between Vacaville and Dixon. He was accompanied by the three plaintiffs, who were riding with him as his guests. They were going duck hunting. It had been raining. The pavement was wet. There is a conflict of testimony regarding the essential facts of the case. There is, however, substantial evidence to indicate that the defendant was driving at a negligent rate of speed, in close proximity to another machine which preceded his car, and that he sought to pass this automobile without first ascertaining that his left-hand portion of the highway was free from approaching vehicles. There is evidence to support the assertion that the defendant was driving at the rate of thirty-five or forty miles an hour. His machine had skidded on the wet pavement just prior to the accident, and one of the plaintiffs warned him against excessive speed. About three miles beyond Vacaville the defendant overtook an automobile which was traveling “at a slow rate of speed”. The machines were then approaching a bridge. The highway was straight and comparatively level. Both cars were traveling on the extreme right-hand side of the pavement. The defendant’s machine was running “right close to it (the forward car), very near to it”. Suddenly, just before reaching the bridge, the tail-light of the front machine was flashed on, but the car did not appear to slacken its speed. Without looking to see that the left-hand side of the pavement was clear of approaching machines, the defendant

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suddenly turned his machine to pass the forward ear on its left-hand side.- He did not see an approaching machine. At a point about eighteen or twenty feet beyond the bridge, while his car was still on the left-hand side of the pavement, it was struck by an approaching Ford truck. All of the plaintiffs were injured. Each of the guests riding in the defendant’s machine at the time of the accident brought a separate action for damages against him for injuries sustained as a result thereof. In a jury trial of these consolidated cases, a verdict was rendered in favor of the defendant. Judgment was entered accordingly. Upon motion, a new trial was granted, chiefly upon the ground of the insufficiency of the evidence to support the judgment. From this order granting a new trial, the defendant has appealed.