Menefee v. Raisch Improvement Co.

CASHIN, J.

An action was brought by plaintiff alleging that defendant corporation, in the operation of a motor-truck owned by it, negligently caused damage to an automobile in the possession of plaintiff, the elements of damage alleged being injuries to the automobile and the temporary loss of its use. Judgment was entered for plaintiff, from which defendant appealed.

The grounds urged for reversal are that defendant’s special demurrer should have been sustained; that the evidence was insufficient to support the findings, and that the court failed to find on the issue of contributory negligence.

The testimony shows that the injuries alleged were caused on July 25, 1924, while plaintiff was driving in a northerly direction on the east side of Lincoln Avenue in Santa Clara County; that the automobile was one in his possession under a contract for its purchase and used in the course of his

occupation;

that when he reached a point twenty feet south of a private road or driveway leading into the highway from the east and a view of which was obstructed by shrubbery defendant’s truck emerged therefrom; that no warning of its approach was given and that no horn or other warning device was carried by it; that plaintiff applied his brakes, but was unable to stop before striking the truck. The court found defendant to have been guilty of negligence proximately causing the injury, and that plaintiff was driving in a careful and prudent manner.

The latter was a sufficient finding on the issue of contributory negligence

(Arrelano

v.

Jorgensen,

52 Cal. App. 622 [199 Pac. 855]).

Defendant offered no evidence, but urges that contributory negligence appears from that adduced by

plaintiff;

[788]

that it appearing that the latter’s brakes were applied at a point twenty feet from that of the collision, it follows from the fact that the car failed to stop before the impact that it was not equipped as required by section 94 of the Vehicle Act, which provided that “every motor vehicle operated upon a public highway shall be provided at all times with brakes which shall be adequate to promptly check the speed of and to stop the motor vehicle,” and that by the use of ordinary care the car might have been turned to the left of the truck and the injury avoided.