Fate v. Gross

THE COURT.

The defendant H. M. Gross appeals from a judgment rendered against him in an action brought by the plaintiff, Lewis A. Fate, for damages on account of personal injuries sustained by the latter as a result of a collision between the defendant’s automobile and plaintiff’s motorcycle.

The action against appellant’s codefendant Todd Protectograph Company, a corporation, was dismissed on a motion for a nonsuit.

The trial was had before the court sitting without a jury, and the court found that the defendant was and that the plaintiff was not guilty of negligence. The question of the insufficiency of the evidence is the only one presented on this appeal aand therefore if there is substantial evidence in the record to support the findings, the judgment must be affirmed.

The collision occurred on North First Street, in the city of San Jose, at a point nearly opposite the steps of the courthouse, at the hour of 5:40 on the evening of March 31, 1921. Defendant was traveling in an automobile northerly on the right-hand side of North First Street, at a rate of speed of about ten miles an hour. The plaintiff was riding on a motorcycle, and was traveling behind but in the same direction with defendant, at a rate of speed of about fifteen miles an hour.

The evidence on the part of plaintiff shows that when defendant reached a point opposite the St. James Hotel, which was about seventy-five feet south of the place where the collision occurred, and at which time plaintiff was approximately thirty feet behind defendant’s machine, the defendant slackened his speed, changed his course a little to the right, and gave a hand signal indicating his intention to park his machine at the curb. He moved toward the curb until within three or four feet of it, and then, without giving any other or additional warning or signal, he turned his machine sharply to the left, following the line of a circle, evidently intending to turn around at that

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point in the street. By doing so he collided with the plaintiff, throwing the latter to the pavement and fracturing both bones of the right leg between the knee and the ankle.

We are satisfied that the evidence above narrated is sufficient in law to sustain the finding of the trial court that the defendant was negligent. The Motor Vehicle Act of California provides that no vehicle except those operated by the police or fire .departments shall, in a business district or closely built-up territory, be turned so as to proceed in the opposite direction except at an intersection of the public highway (srubd. q, sec. 20, Motor Vehicle Act, Stats. 1919, p. 215). It is also provided that before turning, stopping, or •changing the course the person in charge of a vehicle shall first see that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping, or changing of course, shall give plain, visible signal of his intention so to turn, stop, or change his course, etc. (subd. h, sec. 20, Motor Vehicle Act). All of these plain provisions of the statute were violated by the defendant.