Mecham v. Crump

JAMISON, J.,

pro

tem.

This is an action for damages for injuries received by plaintiff resulting from being struck by an automobile operated by defendant Lillian Crump.

Defendants E. M. Crump and Lillian Crump are husband and wife and at the time of the accident Lillian Crump was operating the automobile by and with the consent of her said husband.

This action was tried by a jury which returned a verdict in favor of plaintiff and against both defendants. Defendants moved for a new trial, and same being denied, both defendants appealed from the judgment rendered upon said verdict.

Defendants contend that the evidence did not show negligence upon the part of defendant Lillian Crump and that it did show contributory negligence upon the part of the plaintiff.

The evidence produced by plaintiff was substantially as follows:

Respondent Mecham, at the time he suffered the injuries was the foreman of the Force Construction Company and was engaged in filling in the low places and cutting down the shoulders along the paved portion of the Sacramento and Stockton highway. His duties as such foreman required of him that he sometimes operate the equipment, sometimes set stakes and sometimes perform physical labor.

On August 20, 1932, respondent had been overseeing and inspecting the work on said highway. This work covered a distance of some eleven miles. Shortly before noon respondent arrived at the place where he was injured. He parked his automobile on the east side of the highway about four feet from the paved part thereof. Shortly thereafter H. L. Leventon, the contractor, also drove up and parked his car on the east side of the highway and about ten feet from

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the paved portion and about thirty feet .south of respondent’s car. There was a caterpillar towing a grader on the west side of the highway and an automobile, belonging to one Carlson, who was operating a caterpillar on the east side of the highway, and this automobile was parked off of the paved portion of the highway some twenty feet in front of the caterpillar and grader on the west side. On the east side of the highway in addition to the two automobiles belonging to Leventon and respondent there was another caterpillar towing a grader about thirty feet south of respondent’s car and off the paved portion of the highway. When Leventon stopped his car respondent went to him and they had some conversation. While engaged in this conversation respondent observed that the Carlson automobile was in a position that impeded the caterpillar and grader that was operating on the west side, and he went across the highway to remove it. As he neared the Carlson automobile he noticed that the ignition key was missing. He then returned across the highway and motioned to Carlson for the key. Carlson immediately threw the key to respondent, and in striking his hand, it fell upon the paved portion of the highway about two feet from its edge. Respondent, when the key was thrown, was about four feet from the edge of the paved portion of the highway and took two steps to recover the key, and while he was at the edge of the paved portion of the highway and was stooping over to get the key, he was struck by the automobile driven by appellant Lillian Crump, which was coming from the south. At the time respondent was struck, the automobile operated by appellant Lillian Crump was traveling at a speed of 40 or 45 miles per hour. After being struck, respondent was rolled twenty feet and the automobile continued 350 feet before stopping.