Buzby v. Lewis

MARKS, J.

In this action respondent sought judgment for personal injuries and property damages alleged to have

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resulted from a collision between Ms automobile and a truck belonging to appellants. Judgment was rendered for respondent against William Lewis only. The case comes up on the judgment-roll and the only question presented for our consideration is the sufficiency of the complaint to sustain the judgment, appellants maintaining that it does not state facts sufficient to constitute a cause of action.

It is alleged by respondent that on or about the twenty-third day of September, 1925, he was riding in his automobile driven and operated by his son with due care and caution along a public highway running in an easterly and westerly direction between the city of Holtville and the town of Winterhaven in Imperial County, California; that appellants

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carelessly and negligently caused a Moreland automobile truck propelled by a gasoline engine, said truck being then and there owned and controlled by them, and being driven, run and operated along said public highway and thoroughfare at said plaintiff aforesaid, and while traveling in an easterly direction on the north side of said public highway and thoroughfare, at a great and negligent rate of speed, to wit: Approximately forty miles per hour, so that by reason of the negligent operation of said Moreland automobile truck, said truck did strike and hit the automobile in which said plaintiff was so riding. That by reason of said carelessness and negligence in the handling and operation of said Moreland automobile truck by defendants and each of them, as aforesaid, said Moreland automobile truck collided with and side-swiped said automobile in which said plaintiff was so riding.”

Respondent seeks to support his pleading upon two grounds, namely, first, because it is alleged therein that the truck of appellants “was traveling in an easterly direction on the north side of the public highway”; and, second, that the truck was traveling “at a great and negligent rate of speed, to-wit, approximately forty miles per hour.” In support of his first contention he relies upon section 124, California Vehicle Act (Stats. 1923, p. 517). In support of his second contention he relies upon sections 113 and 118 of the same act.